THE    LAW 


OF 


LIBEL  AND  SLANDER 

THE  EVIDENCE,  PROCEDURE,  AND  PRACTICE, 

BOTH  IN 

CIVIL    AND    CRIMINAL    CASUS, 

AND 

PRECEDENTS  OF  PLEADINGS, 

"WITH 

A  CHAPTER  ON  THE  NEWSPAPER  LIBEL  AND  REGISTRATION  ACT,  1881. 

BY 

W.  BLAKE  ODGERS,  M.A,  LL.D. 

LATE    SCHOLAR    AND    LAW    STUDENT    OF    TRINITY    HALL,    CAMBRIDGE, 
OP     THE     MIDDLE     TEMPLE     AND     THE     WESTERN      CIRCUIT.     BARRISTER- AT-LAW. 

FROM  THE  SECOND  ENGLISH  EDITION. 

"DEAD  SCANDALS  FORM  GOOD  SUBJECTS  FOE  DISSECT/  OX."-Brv.ox 


NEW  YORK  AND  ALBANY 

BANKS  &  BROTHERS,    LAW  PUBLISHERS 

1891 


Entered  according  to  the  Act  of  Congress,  in  the  year  1887, 

By  THE  BLACKSTONE  PUBLISHING  COMPANY, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington,  D.  0. 


C\'2\~^v 


(2) 


TO 


ARTHUR  CHARLES,  Esq.,  Q.C 


RECORDER  OF  BATH, 


IN  A  CKKOIVLEDGMFNT  OF  MANY  KINDNESSES, 


%  JJjcxticatc  this  ^ocrTi. 


(3) 


PREFACE 


TO    THE    SECOND    EDITION. 


The  law  relating  to  Libel  and  Slander  has  undergone  considerable 
modification  since  the  First  Edition  of  this  Book  was  published  in 
February,  1881.  In  August,  1881,  the  Newspaper  Libel  and 
Registration  Act  became  law  ;  two  years  later  the  general  practice 
of  the  High  Court  was  altered  in  many  respects  by  the  Rules  of 
the  Supreme  Court,  1883  ;  while  in  the  Chancery  Division  a  prac- 
tice has  sprung  up  of  granting  injunctions  in  cases  of  libel  and 
slander,  which  is  not  in  accordance  with  the  former  procedure. 
Two  new  Chapters  have,  therefore,  been  added  in  this  Edition — 
one  on  the  Act  of  1881,  the  other  on  Injunctions  ;  while  the  Chap- 
ters on  Costs  and  Practice  in  Civil  Cases  have  been  much  modified. 

The  Chapter  on  Blasphemous  Words  has  been  entirely  re-written, 
and  by  the  kind  permission  of  Lord  Coleridge,  C.J.,  I  am  enabled 
to  add  in  an  Appendix  [*  vi.]  the  revised  Edition  of  his  Lordship's 
summing  up  in  the  case  of  H.  v.  Ramsey  and  Foote. 

All  decisions  reported  since  1881  have  been  noted  down  to  the 
date  of  publication,  and  the  whole  Book  carefully  revised. 


W.  B.  O. 


4,  Elm  Court  Temple,  E.C., 

June,  1887. 

(5) 


PREFACE 

TO     THE     FIE  ST    EDITION, 


Tins  book  has  been  called  "  A  Digest  of  the  Law  of  Libel  and 
Slander,"  because  an  attempt  has  been  made  to  state  the  law  on 
each  point  in  the  form  of  an  abstract  proposition,  citing  the  decided 
cases  in  smaller  type  merely  as  illustrations  of  that  abstract  pro- 
position. 

Every  reported  case  decided  in  England  or  Ireland  during  the 
last  fifteen  years  has  been  noticed.  Every  case  reported  in  England 
during  this  century  has,  I  believe,  been  considered  and  mentioned, 
unless  it  has  either  been  distinctly  overruled  or  has  become  obsolete 
by  a  change  in  the  practice  of  the  Courts  or  by  the  repeal  of  some 
statute  on  which  it  depended.  The  earlier  cases  have  been  more 
sparingly  cited,  but  I  think  no  case  of  importance  since  1558  has 
been  overlooked.  The  leading  American  decisions  have  also  been 
referred  to,  and  whenever  the  American  law  differs  from  our  own 
the  distinction  has  been  pointed  out  and  explained.  Canadian  and 
Australian  decisions  have  also  been  quoted,  whenever  the  English 
law  was  doubtful  or  silent  on  the  point.  The  cases  have  been 
brought  down  to  the  early  part  of  January,  1881. 

It  would  be  of  but  little  use  to  place  all  these  decisions  before 
the  reader  and  leave  him  to  draw  his  own  conclusions.  A  huge 
collection  of  reported  cases  piled  one  on  the  top  of  the  other  is  not 
a  legal  treatise,  any  more  than  a  tumbled  pile  of  bricks  is  a  house. 
I  have  throughout  attempted  to  strike  a  balance,  as  it  were,  and 
state  the  net  result  of  the  authorities.  But  this  is  a  process  requir- 
ing the  greatest  care  and  much  expenditure  of  time.  When  I  com- 
menced this  book  in  1876,  I  did  not  at  all  realize  the  amount  of 
labor  which  was  requisite  in  order  to  ascertain  the  law  and  state  it 
clearly  in  an  abstract  form.      [*  vii.J 

It  is  often  very  difficult  to  determine  whether  or  no  a  decision 
has  ceased  to  be  a  binding  authority  :  our  judges  in  the  present  day 
seldom  expressly  overrule  a  previous  decision  ;  they  comment  on  it, 

(7) 


Vlll  PREFACE   TO    THE    FIRST    EDITION. 

distinguish  it,  explain  it  away,  and  then  leave  it  with  its  lustre  tar- 
nished, but  still  apparently  a  binding  authority  should  identically 
the  same  facts  rerur.  There  is  no  rule  which  decides  how  long  the 
process  of  "  blowing  upon"  a  case  must  continue  before  it  may  be 
considered  overruled.  Whenever  such  a  case  has  been  cited,  I  have 
always  referred  the  reader  to  the  places  where  it  has  been  criticised, 
adding,  however,  my  own  opinion  as  to  the  effect  of  such  criticism 
on  the  authority  of  the  case.  And  in  many  places  it  has  been 
necessary  to  review  the  cases  in  a  note,  showing  how  they  bear  one 
on  another,  and  justifying  the  view  which  I  have  taken  of  their 
result.  Such  notes  are  printed  in  a  medium  type,  smaller  than  that 
devoted  to  the  abstract  propositions  of  the  Digest,  larger  than  the 
Illustrations  which  follow  them. 

My  object  throughout  has  been  to  save  the  reader  trouble.  All 
the  references  to  every  decision  have  always  been  cited.  All  con- 
siderations of  style,  &c,  have  been  -sacrificed  to  clearness  and  con- 
venience. I  have  abruptly  changed  from  the  third  to  the  first  or 
second  person,  whenever  there  was  any  possibility  of  mistaking  the 
antecedent, of  any  pronoun.  It  is  sometimes  difficult  to  follow  A., 
B.,  and  C,  through  a  long  sentence  :  it  is  easier  to  distinguish 
between  "  I,"  "  you,"  and  "  he."  Again,  whenever  I  have  been  in 
doubt  whether  the  law  on  a  particular  subject  should  be  noticed  in 
one  chapter  or  in  another,  I  have  invariably  stated  it  in  both. 
Thus,  nearly  the  whole  of  the  chapter  on  Malice  will  be  found  scat- 
tered up  and  down  the  long  chapter  on  Privilege.  So,  too,  for  the 
sake  of  practical  convenience,  all  the  cases  as  to  the  Innuendo  and 
the  construction  to  be  put  on  Defamatory  Words,  have  been  col- 
lected in  Chapter  III.  In  Chapter  XIV.  all  the  law  as  to  Husband 
and  Wife,  Principal  and  Agent,  &c,  &c,  has  been  gathered 
together  under  the  somewhat  stilted  but  convenient  title  of  The 
Law  of  Persons.  A  separate  chapter  has  been  devoted  to  the  sub- 
ject of  Costs.  In  the  chapters  on  Blasphemous  and  Seditious 
Words,  I  have  not  hesitated  to  express  freely  my  conviction  that 
many  of  the  early  decisions  would  not  be  followed  in  the  present  day. 

One  difficulty  connected  with  the  subject  matter  of  the  book  I 
[*ix.]  have  endeavored  to  avoid,  by  restoring  the  word  "malice" 
to  its  simple  and  ordinary  meaning.  The  distinction  between 
"  malice  in  law  "  and  "  malice  in  fact "  is  of  comparatively  recent 
origin.  "  Malice  in  law  "  is  the  vaguest  possible  phrase  ;  it  merely 
denotes  "absence  of  legal  excuse."  The  plaintiff  is  never  called 
on  to  prove  the  existence  of" "malice  in  law  ;  "  the  defendant  has 
to  show  the  existence  of  some  legal  excuse.     In  short,  to  say  that 

(8) 


PREFACE    TO    THE    FIRST    EDITION".  IX 

a  libel  must  be  published  "  maliciously,"  means  merely  that  it  must 
be  published  "on  an  unprivileged  .occasion."  I  have  therefore 
abandoned  this  technical  and  fictitious  use  of  the  word.  Through- 
out this  book  (to  use  the  words  of  Brett,  L.J.,  in  Clark  v.  Molyneux, 
see  p.  271)  "'Malice'  does  not  mean  'malice  in  law,'  a  term  in 
pleading,  but  actual  malice,  that  which  is  popularly  called  malice." 
The  second  part  of  the  book  is  devoted  to  Practice,  Procedure, 
and  Evidence.  I  have  fought  both  a  civil  action  and  a  criminal 
trial  through  from  beginning  to  end,  giving  practical  hints  to  each 
side.  Indeed,  I  have  taken  up  the  subject  at  an  earlier  point  than 
is  usual  in  law  books,  and  have  submitted  to  the  plaintiff  certain 
matters  which  he  should  carefully  consider  before  he  issues  his 
writ  (p.  513). 

-  In  the  Appendix  will  be  found  a  full  collection  of  Precedents  of 
Pleadings,  both  in  Civil  and  Criminal  cases.  Some  are  drawn  from 
the  reports  ;  others  are  hypothetical  cases  of  my  own  invention  ; 
but  the  majority  are  pleadings  in  actions  in  which  friends  of  mine, 
or  I  myself,  have  been  professionally  engaged. 

W.  Blake  Odgers. 

5,  Hare  Court,  Temple,  EC, 
February,  1881. 


(9) 


TABLE  OF  CONTENTS. 


*#*  The  figures  refer  to  the  *  pages  between  brackets  [*]. 


TABLE  OF  CASES         .... 

TABLE   OF   STATUTES   CITED  . 

TABLE   OF  RULES   AND   ORDERS  CITED 


PAGE 

xxi — lxvii 
lxviii — lxx 
Ixxi — lxxii 


PART   I. 

A  DIGEST  OF  THE  LAW   OF  LIBEL  AND  SLANDER. 


CHAPTER  I. 

INTRODUCTORY   .      

Definitions  ...... 

Distinction  between  Libel  and  Slander 

Motive  Immaterial,  save  on  the  Question  of  Damages  . 

Criminal  Remedy  for  Libel  ..... 

' '  Liberty  of  the  Press  "  defined 

History  of  the  Censorship  of  the  Press 

Acts  injurious  to  Reputation     .... 

CHAPTER  II. 

DEFAMATORY  WORDS 

Definitions       .  .  .  .  . 

Injury  to  the  Reputation  the  gist  of  the  Action 

PART   I.— LIBEL. 

Libel  Defined        ...... 

Libels  on  Persons  in  Office    ..... 

Libels  on  Professional  Men  .... 

Libels  on  Traders       ...... 

Libels  on  Traders'  Goods  .... 

Fair  and  bond  fide  Comment  on  Matters  of  Public  Interest 
Criticism  defined  and  distinguished  from  Defamation   . 
Assertion  of  Facts  no  comment         .... 

Malicious  and  Unfair  Attacks     .... 

What  are  matters  of  Public  Interest 

Affairs  of  State     ...... 

(11) 


1—16 


. 

1 

2—7 

. 

3 

7 

10 

ib. 

13 

17—92 

.   .   17 

.   18 

19 

25 

27 

.   29 

•   30 

32 

33 

35 

.   38 

40 

42 

xii  TABLE   OF  CONTEXTS. 

(The  paging  refers  to  the  [*]  pages.) 

PAGE 

Administration  of  Justice             .             .             .             .             .  .44 

Public  Institutions  and  Local  Authorities    .           .           .  46 

Ecclesiastical  Affairs        .            .            .            .            .            .  .47 

Books,  Pictures,  &c.              .            .            .            .            .  48 

Theatres,  Concerts,  and  other  Public  Entertainments   .             .  .49 

Other  Appeals  to  the  Public              .             .             .             .  50 

PART   II.— SLANDER. 

I.  Words  imputing  an  Indictable  Offence       ....       53 

Words  of  Suspicion  only           .            .            .            .  57 

Early  Cases  on  this  Subject             .            .            .            .  .59 

The  Crime  imputed  must  be  possible  .            .            .  03 

II.  Words  imputing  a  Contagious  Disease        .             .             .  .04 

III.  Words  spoken  of  the  Plaintiff  in  the  way  of  his  Office,  Profession 

or  Trade         .            .            .            .            .            .  .       .       65 

Such  Words  must  affect  him  in  such  Office,  Profession  or  Trade      07 

Imputation  of  Professional  Ignorance  or  Unskilfulness  .  .  70 
Words  imputing  Want  of  Integrity  to  any  one  holding  an  Office 

of  Trust          .            .            ,            .            .            .  .       .      71 

Words  concerning  Clergymen         .             .             .             .  .73 

Words  concerning  Barristers,   Solicitors,    &c.            .  75 

Words  concerning  Physicians  and  Surgeons          .            .  .77 

Words  affecting  Traders  in  the  way  of  their  Trade     .  79 

Imputations  of  Insolvency  .            .            .            .            .  .80 

Imputations  of  Dishonesty  in  the  Conduct  of  their  Trade  .       .      81 

IV.'  Words  Actionable  only  by  reason  of  Special  Damage      .  .       83 

Words  imputing  Immorality     .             .             .             .  85 

Unsatisfactory  State  of  the  Law  on  this  point        .            .  .87 

All  words  causing  Special  Damage  are  Actionable    .  89 

CHAPTER    III. 

CONSTRUCTION  AND   CERTAINTf  ....  93—133 


What  Meaning  the  Speaker* intended  to  convey  is  immaterial 

Libel  or  no  Libel  is  a  question  for  the  Jury 

Duty  of  the  Judge      ...... 

Words  not  to  be  construed  in  mitiori  sensu 

Jury  to  consider  the  Words  as  a  whole 

Of  the  Innuendo  ...... 

Plaintiff  bound  by  his  Innuendo        .... 

1.  Words  obviously  Defamatory     . 

2    Words  prima  facie  Defamatory 

3.  Neutral  Words  ..... 

4.  Words  prima  facie  Innocent 

5.  Words  clearly  Innocent         .... 
Certainty.     Early  Technicalities 

Certainty  of  the  Imputation  .... 

Charges  of  Crime  ..... 

(12) 


93 

94 

ib. 

95 

98 

99 

101 

104 

100 

109 

112 

116 

118 

120 

121 


TABLE  OF  CONTENTS.  xiii 

(The  paging  refers  to  the  [*]  pages.) 

PAGE 

Indirect  Imputations  and  Insinuations         .  .  .  .  125 

Certainty  as  to  Person  Defamed  ....  127 

CHAPTER   IV. 

SC AND  ALUM  MAGNATUM 134—137 

Statutes  .  .  .  .  .  .  .  .     134 

What  Words  are  included  therein  .  .  .  .     136 

CHAPTER  V. 

SLANDER  OF  TITL3,  OR  WORDS  CONCERNING  THINGS    138—150 
Definition        .........     138 

I.    Slander  of  Title  proper        .  .  .  .  .  .      ib. 

Proof  of  Malice  .  .  .  .  .  .  .       .     142 

II.    Slander  of  Goods  Manufactured  or  Sold  by  another  .  .     147 

CHAPTER  VI. 

PUBLICATION .     151—169 

151 
153 
154 

156 
158 
161 
162 
163 
166 
167 


Definition  of  ..... 

Husband  and  Wife  .... 

Plaintiff  must  Prove  a  Publication  by  the  Defendant  in  fact 

Publication  per  alivm      .... 

Publication  in  a  Newspaper 

Unconscious  Publication 

Repetition  of  a  Slander  .... 

Naming  your  Authority  now  no  Defence  .. 

Defendant  not  liable  if  others  repeat  his  Slander    . 

Exceptions  to  this  Rule 

CHAPTER  VII. 

JUSTIFICATION         .  .  • 170-180 

Onus  of  Proving  Words  true  is  on  the  Defendant  .  .    "  .    170 

The  whole  Libel  must  be  Proved  true  ■       .  .  .  ib. 

The. Rule  applies  to  all  Reported  Speeches  or  Repetitions  of  Slander       174 
Justification  must  be  Specially  Pleaded        .  .  .  .  .     177 

True  Charge  made  Maliciously  .....     178 

CHAPTER  VIII. 

PRIVILEGED  OCCASIONS 181-268 

Defence  that  Words  were  spoken  on  a  Privileged  Occasion  .       .181 

The  Judge  to  Decide  whether  Occasion  is  Privileged  or  not  .     183 

PART  I. 

OCCASIONS  ABSOLUTELY  PRIVILEGED  .  .        .     184—196 

(i)  Parliamentary  Proceedings  .....     185 

(ii)  Judicial  Proceedings     .  .  .  .  .  . '     .     187 

Words  Spoken  by  a  Judge  .  .  .  .  .      ib. 

(13) 


xiv  TABLE   OF  CO  STENTS. 

(The  paging  refers  to  the  [*]  pages.) 

PAGE 

Words  Spoken  by  a  Counsel  .  .  .  .     189 

Words  Spoken  by  a  Witness  .....     190 

(iii)  Naval  and  Military  Affairs      .  .  .  .  .     194 

PART  II. 

QUALIFIED  PRIVILEGE 197—268 

Cases  of  Qualified  Privilege  classified  .  .  .  .     197 

I.  Where  circumstances  cast  upon  the  Defendant  the  duty 
of  making  a  Communication. 

A.  Communications  made  in  pursuance  of  a  Duty  owed  to  Socu  ty  .     199 
Duty  may  be  Moral  or  Social  .  .  .  .       .      ib. 

(i)  Characters  of  Servants  .....     201 

(ii)  Other  Confidential  Communications  of  a  Private  Nature. 

(a)  Answers  to  Confidential  Inquiries  .  .       .     204 

(b)  Confidential  Communications  not  in  answer  to  a  pre- 

vious Inquiry  ...  .     208 

(c)  Communications  made  in  Discharge  of  a  duty  arising 

from  a  Confidential  Relationship  .  .       .     210 

(d)  Information  volunteered  when  there  is  no  Confiden- 

tial Relationship             .            .            .  .  213 
Difficulty  of  the  Question        .            .            .  .214 
Provinces  of  Judge  and  Jury        .            .  .  216 
(iii)  Information  as  to  Crime  or  Misconduct  of  others  .  221 
Charges  against  Public  Officials           .            .  .       .  225 
Persons  applied  to  must  have  some  Jurisdiction  to  enter- 
tain Complaint           .            .            .            .  .  227 

B.  Communications  made  in  Self-Defence. 

(iv)  Statements  necessary  to  protect  Defendant's  private  Interests    229 
(v)  Statements  provoked  by  a  previous  attack  by  Plaintiff  on 

Defendant         .  .  .  .  .  .       .     232 

Statements  invited  by  the  Plaintiff  .  ..  .     234 

II.  Where  the  Defendant  has  an  Interest  in  the  Subject- 

matter  of  the  Communication,  and  the  Person  to 
whom  the  Communication  is  made,  has  a  Correspond- 
ing Interest  ...... 

Where  a  large  Body  of  persons  are  interested 

If  Strangers  present,  the  Privilege  will  be  lost 

III.  Privileged  Reports     ..... 

(i)  Report  of  Judicial  Proceedings 

Matters  co ram  nonjudice      .... 

Reports  not  privileged  .... 

Reports  must  be  accurate      . 

Reporting  part  only  of  a  trial 

No  comments  should  be  interpolated 

An  accurate  Report  may  still  be  malicious 
(ii)  Reports  of  Parliamentary  Proceedings 
(iii)  Other  Reports      .  .  ... 

Public  Meetings         ..... 
(14) 


238 
243 
245 
248 
ib. 
249 
253 
255 
258 
259 
261 
264 
266 


TABLE   OF   CONTENTS. 

(The  paging  refers  to  the  [*]  pages.) 


CHAPTER  IX. 


MALICE 

Intention  of  Defendant  as  a  rule  immaterial 
Material  when  the  Occasion  is  one  of  Qualified  Privilege 
Malice  defined  ..... 

Mere  Mistake  never  evidence  of  Malice  . 


269 


I. 


II. 


Extrinsic  Evidence  of  Malice    .  .  .  .  . 

Former  publications  by  Defendant  of  Plaintiff 
That  the  Words  are  false  is  alone  no  evidence  of  Malice 
Evidence  of  Malice  derived  from  the  Mode  and  Extent  of  Publi- 
cation, the  Terms  employed,  &c.        .  .  .  . 

(i)  Where  the  Expressions  employed  are  exaggerated  and 
unwarrantable  . 

(ii)  Where  the  Mode  and  Extent  of  Publication  is  Excessive 


PAGE 

-290 
269 
270 
271 
273 
275 
276 
278 

281 

283 
286 


CHAPTER   X. 

DAMAGES 

General  and  Special  Damage  defined  and  distinguished 
I. 


291— 


General  Damages    ...... 

Different  kinds  of  General  Damages 
II.  Special  Damage  wht  re  the  words  are  not  actionable  per  se 
What  constitutes  Special  Damage      .... 

Special  Damage  must  be  specially  pleaded 

Loss  of  Custom  ...... 

Special  Damage  subsequently  arising 

III.  Special  Damage  where  the  words  are  actionable  per  se 

IV.  Evidence  for  the  Plain  tiff  in  Aggravation  of  Damages 
Other  Libels  and  Slanders        ..... 
Plaintiff's  Good  Character  .... 

V.  Evidence  for  the  Defendant  in  Mitigation  of  Damages 
(i)  Evidence  falling  short  of  a  Justification 
(ii)  Previous  Publications  by  Others 
(iii)  Liability  of  Others         .... 

(iv)  Absence  of  Malice  .... 

(v)  Evidence  of  Plaintiff's  Bad  Character 
(vi)  Absence  of  Special  Damage 
(vii)  Apology  and  Amends     .... 

VI.  Remoteness  of  Damages  ..... 

Damage  must  be  the  direct  result  of  Defendant's  Words 

Damage  caused  by  the  act  of  a  Third  Party 

Not  essential  that  such  Third  Person  should  believe  the  Charge 

Third  Person  compelled  to  repeat  Defendant's  Words 

Damage  caused  by  a  repetition  of  a  Slander 

Husband  and  Wife       ...... 

Damage  must  have  accrued  to  Plaintiff  himself 
(15) 


336 
291 
293 
294 
297 

ib. 

ib. 
303 
306 

ib. 
309 
310 

ib. 
312 

ib. 
313 
315 
317 
320 
322 

ib. 
325 
326 
328 
329 
330 
331 


xvi  TABLE  OF  CONTENTS. 

(The  paging  refers  to  the  [*]  pages  ) 

PAGE 

CHAPTER  XI. 

INJUNCTIONS 337—364 

I.    Injunctions  to  restrain  or  prevent  Contempt  of  Court             .  .     337 

forbidding  Reports  of  Judicial  Proceedings  .     339 

II.  Injunctions  granted  after  Verdict  or  at  the  Final  Hearing  .     340 

III.  Injunctions  granted  on  Interlocutory  Application            .  .     342 

Restraining  the  Publication  of  Private  Letters      .            .  .     347 

Rival  Patentees-               .            .            .            .            .  .348 

Power  to  grant  such  Injunctions  Questioned         .             .  .     3j1 

Power  of  the  Court  not  increased  by  the  Judicature  Act  .     359 

CHAPTER    XII. 

COSTS  .  . 305—373 

305 
366 

ib. 
368 
369 
370 
371 
372 

ib. 

ib. 
373 


Costs  now  follow  the  Event,  unless  otherwise  ordered 
All  early  Statutes  as  to  Costs  repealed  by  Judicature  Act 
Application  to  deprive  successful  Plaintiff  of  Costs     , 
Special  Costs  ....... 

Costs  of  Issues  ...... 

Costs  after  Payment  into  Court     ..... 

Costs  of  Counterclaim  ..... 

Costs  of  Remitted  Action  . 

Costs  of  former  Trial    ...... 

Costs  as  between  Husband  and  Wife       .... 

Costs  of  Public  Bodies  .  .  .  .  ■ 

CHAPTER  XIII. 

THE  NEWSPAPER  LIBEL  AND  REGISTRATION  ACT,  1881.     374—393 
Sections      .........     375 

Definitions  ........     376 

Reports  of  Public  Meetings  Privileged     .  .  .  .  377 

Prosecution  of  Newspapers  for  Libel  ....     383 

Registration  of  Name  of  Proprietor         .  .  .  .  387 

Fees  on  Making  Return  .  .  .  .  •  .391 

CHAPTER   XIV. 

THE  LAW  OF  PERSONS  IN  BOTH  CIVIL  AND  CRIMINAL  CASES 

394—421 

1.  Husband  and  Wife  .  .  .  .  ■  .394 

Claim  by  Husband  for  Words  defamatory  of  Wife  .      ib. 

Married  Woman  Plaintiff  ,  .  .  .  .  395 

Liability  of  Husband  for  Wife's  words  .  .  .     400 

Married  Woman  Defendant  .  .  .  401 

Criminal  Liability  of  a  Married  Woman  .  .  .     404 

2.  Infants    .  .  .  .  .  .  .  .       .     405 

3.  Lunatics        ......"■    408 

(16) 


TABLE  OF  CONTENTS. 

(The  paging  refers  to  the  [*]  pages.) 

4.  Bankrupts  .  . 

5.  Receivers      .  ■  . 
(i.  Executors  and  Administrators 

7.  Aliens  ...... 

8.  Master  and  Servant— Principal  and  Agent 

Master's  Commands  no  Defence 
Principal  liable  for  Words  spoken  by  his  Authority 
Ratification  ..... 

Criminal  Liability  of  Master  or  Principal 

9.  Corporations  and  Companies 

10.  Partners  ...... 

11.  Other  Joint  Plaintiffs  .... 

12.  Joint  Defendants  ..... 


TAOE 

ib. 
407 

ib. 
408 
409 
410 
411 
412 
413 
415 
417 
419 
420 


CHAPTER  XV. 

CRIMINAL  LAW 

Criminal  Remedy  by  Indictment      . 

Special  Intent,  when  necessary 

Misdemeanours  at  Common  Law      . 

Misdemeanours  by  Statute  .... 

Criminal  Remedy  by  Information 

Publication  of  a  Libel  by  one  unconscious  of  its  Contents 

Criminal  Liability  of  an  employer 

Privilege  and  Malice         ..... 

Justification  not  permitted  at  Common  Law 

Justification  under  Lord  Campbell's  Act 


422- 


-439 
422 
423 
425 
426 
,427 
432 
433 
436 
437 
ib. 


CHAPTER   XVI. 

BLASPHEMOUS  WORDS  . 

Blasphemous  Words  defined  .  .  . 

Intent  to  bring  Religion  into  Contempt 

Honest  Advocacy  of  Heretical  Opinions 

Distinction  between  Heresy  and  Blasphemy 

Heresy  defined  ...... 

Jurisdiction  of  Ecclesiastical  Courts 

Blasphemy  as  a  Secular  Offence       .... 

I.   View  taken  in  the  Seventeenth  Century 

Christianity  part  of  the  Common  Law  of  England 
II.  View  taken  in  the  Eighteenth  Century 

Words  striking  at  "  the  very  root  of  Christianity  "  . 
III.  View  taken  by  some  Judges  in  the  Nineteenth  Century 
Unitarianism  no  Crime  .... 

Conflict  of  opinion  on  other  points 

Statutory  provisions  ..... 

Suggested  Reforms  of  this  branch  of  the  Law  of  Libel 
B.  Lib.  &  Slan.  (17) 


440—470> 

.  440 

.  441 

.  442 

.  446 

.  447 

.  448 

.  450 

.  ib. 

.  452 

.  454 

.  456 

.  458  ■ 

.  460 

.  463 

.  464 

.  467 


xviii  TABLE   OF   CONTENTS. 

(The  paging  refers  to  t lie  [*]  pages.) 

CHAPTER   XVII. 

PAGE 

OBSCENE  WORDS 471—47.5 

Test  of  Obscenity  .  .  .  .  .  .  .471 

Summary  Proceedings  under  2Q  cfc  21  Viet.  c.  83  .  .  .  472 

CHAPTER  XVIII. 

SEDITIOUS  WORDS  476-512 

Seditious  Words  denned               ......  47<> 

Treasonable  Words    .             .             .             .             .             .                    .  477 

Words  Defamatory  of  the  Sovereign  himself     .            .                         .  479 

Truth  no  Defence       .             .             .             .             .             .             .  481 

Words  Defamatory  of  the  King's  Ministers  and  Government    .              .  ib. 

Attacks  by  Political  Opponents        .             .             .             .             .  484 

Words  Defamatory  of  the  Constitution               ....  485 

Latitude  allowed  to  Political  Writers           .            .            .            .       .  487 

Words  Defamatory  of  either  House  of  Parliament         .             .             .  488 

Commitment  for  Contempt                .             .             .             .             .       .  ib. 

Colonial  'Legislative  bodies           ......  491 

Words  Defamatory  of  the  Supreme  Court  of  Justice        .            .       .  492 

Contempt  of  Court             .......  493 

Wilful  Disobedience  to  an  Order  of  Court               .            .            .       .  498 

Attachment  and  Committal          ......  499 

Colonial  Courts  of  Justice      .            .            .            .            .            .  503 

Words  Defamatory  of  Inferior  Courts  of  Justice           .             .             .  504 

Contempt  of  an  Inferior  Court  of  Record     .            .            .            .       •  50G 

Sureties  for  Good  Behaviour       ......  508 

Statutory  Powers  of  Inferior  Courts             .            .            .            .  509 

Ecclesiastical  Courts        .  .  .  .  .  .  .512 


PAET   II. 

PRACTICE,  PROCEDURE,  AND  EVIDENCE. 


CHAPTER    XIX. 

PRACTICE  AND  EVIDENCE  IN  CIVIL  CASES  .            .       513—588 

Considerations  before  Writ         .            .            .  .            .            .513 

Parties             .            .            .            .            .  .            .                   .     515 

Letter  before  Action     .            .            .                .  .                             517 

Notice  of  Action        .            .            .            .  .            .            .           518 

Jurisdiction  ........      ib. 

Choice  of  Court          .             .             .             .  .             .             .       .     519 

Statute  of  Limitations       .             .             .             .  .             .             .     52  • 

Former  Proceedings               .             .             .  .             .                    .     521 

Joinder  of  Causes  of  Action         ......     523 

Endorsement  on  Writ            .            .            .  .            .            .             ib. 

(18) 


TABLE  OF  CONTENTS. 


(The  paging  refers  to  the  [*]  pages  ) 

Matters  to  be  considered  by  the  Defendant 
Remitting  the  Action  to  the  County  Court 
Statement  of  Claim 
Instructions  for  Defence 
Amendment 
Particulars 
Defence     . 
Traverses 

Objections  on  points  of  law- 
Privilege 
Justification 
Other  special  Defences 
Payment  into  Court 
Apology 
Counterclaim 
Reply 

Interrogatories 
Setting  aside  Interrogatories 
Answers  to  Interrogatories 
Discovery  of  Documents 
Advice  on  Evidence 
Change  of  Venue 
Trial 

Proof  of  the  Plaintiff's  Special  Character 
Proof  of  Publication 
Proof  of  the  Libel 

Proof  of  the  Speaking  of  the  Slander     . 
Evidence  as  to  the  Innuendo 
Proof  that  the  Words  refer  to  the  Plaintiff 
Proof  that  the  Words  were  spoken  of  the  Plaintiff  in  the  way  of  his 

Office,  Profession,  or  Trade         ...  • 

Evidence  of  Malice    . 
Rebutting  Justification 
Evidence  of  Damage 
Nonsuit 

Evidence  for  the  Defendant 
Withdrawing  a  Juror 
Summing-up 
Costs  . 

Proceedings  after  Judgment 
Application  for  a  New  Trial 
County  Court  Proceedings 
Other  Inferior  Courts 


PAGE 

524 

528 
528 
532 
533 
ib. 
534 
535 
536 

537 

538 

540 
541 

ib. 
543 

ib. 
545 
549 
550 
553 
555 
557 

ib. 
558 
559 
5G3 
564 
565 
567 

568 

ib. 

570 

ib. 

571 

572 

578 

579' 

ib. 

580 

581 

584 

588 


CHAPTER  XX. 


PRACTICE  AND  EVIDENCE  IN  CRIMINAL  CASES 

(19) 


589— G14 


TABLE   OF   CONTENTS 


(The  paging  refers  to  Ihe  [*1  .pages.) 


PART  I. 


PRACTICE  AND  EVIDENCE  IN  CRIMINAL  PROCEEDINGS  BY 

WAY  OF  INDICTMENT 589—610 

Proceedings  before  Magistrates    ......     589 

Indictment      .........     593 

Pleading  to  the  Indictment         ......     590 

Certiorari        .........     597 

Evidence  for  the  Prosecution      ......     599 

Evidence  for  the  Defence       ....  .       .     601 

Summing-up  and  Verdict  ......     604 

Proceedings  after  Verdict      .  .  .  .  .  .       .     605 

Sentence     .........     607 

Costs    .  .  .  .  .  .  .  .  .     609 

PRACTICE  AND    EVIDENCE  IN  PROCEEDINGS  BY  WAY  OF 

CRIMINAL  INFORMATION   ....  610—614 

Motion  for  the  Order  Nisi  .  .  .  .  .  .610 

Argument       .  .  .  .  .  .  .  .       .     612 

Compromise  ........     613 

Trial  and  Costs  .  .  .  .  .        -     .  ib. 


APPENDICES. 


A.  APPENDIX  OF  PRECEDENTS  OF  PLEADINGS,  ETC. 
Contents     .... 


615— 


1. 


Libel  and  Slander 


.statements  of  Claim  in  Actions  for 

Defences,  &c. 

No  Libel 

No  sufficient  publication 

Justification 

Privilege 

Apology 

Interrogatories  and  Answers 

Precedents  of  Pleadings  in  Actions  of  Slander  of  Title 

Forms  of  Pleadings,  Notices,  etc.,  in  the  County  Court  . 

Precedents  of  Criminal  Pleadings         .  .  .  .       . 

B.  REVISED  SUMMING-UP  BY  LORD  COLERIDGE,  C.J.,  IN  R.  v. 

RAMSEY  AND  FOOTE 688 

C.  BILL  FOR  THE  ABOLITION  OF  PROSECUTIONS  AGAINST 

LAYMEN  FOR  THE  EXPRESSION    OF    OPINION    ON 
MATTERS  OF  RELIGION 

D.  APPENDIX  OF  STATUTES 

Contents 


II. 
III. 
IV. 


687 
615 
618 
633 
635 
637 
641 
643 
656 
659 
662 
670 
673 

-704 


GENERAL  INDEX 


705 

.  707- 

-729 

707 

.  731- 

-SOS 

(20) 


TABLE    OF    CASES, 


(The  paging  refers  to  the  [*]  pages.)  [*  xsi] 


Abb— And.  page 

v.  Eaton  (1813),  cited  2  Ves.  &  B.  23  .  .  .  .     347 

Abbott  v.  Andrews,  8  Q.  B.  D.  64s  ;  51  L.  J.  Q.  B.  (541  ;  30  W.  R.  779  369 
Abrath  v.  North  Eastern  Rv.  Co.,  11  App.  Cas.  253  ;  55  L.  J.  Q.  B.  400  ; 

55  L.  T.  65  ;  5t>  J.  P.  659  .  .  .  .    4,  5,  270,  416 

Abud  v.  Riches,  2  Ch.  D.  528  ;    45  L.  J.    Ch.  649  ;    24  W.  R.   637  ;  34 

L.  T.  713. 501 

Adams  v.  Coleridge,  1  Times  L.  R.  84  .  212,  ?40,  273,  274,  295 

v.  Kelly,  Ry.  &  Moo.  157  .  .  .       156,  334,  560,  562,  565 

■  r.  Meredew,  2  Y.  &.  J.  417  ;  3  Y.   &    J.  219  .  .  .     103 

v.  Rivers,  11  Barbour  (N.  Y.)  Rep.  390  .  .  .         .       84 

Adlam  r.  Colthurst,  L.  R.  2  Adm.  &  Eccl.  30  ;  36  L.  J.  Ec.  Ca.  14,  500,  512 
Ahrbecker  &  Son  v.  Frost,  17  Q.  B.  D.  606  ;  55  L.  T.  264  .  .  .     372 

Aish  v.  Gerish,  1  Roll.  Abr.  81  .  .  .  .       .     132 

Alderton  v.   Archer,  14   Q.  B.  D.    1  ;    54  L.  J.  Q.  B.  12  ;  33  W.  R.  133  ; 

51  L.  T.  661  .  .  .  .  .  .  .     518 

Aldrichw.  Press  Printing  Co.,  9  Min.  133         .  .  .  .     416 

Alexander  v.  Angle,  4  M.  &  P., 870  ;    S.  C.  sub  nom.  Angle  v.  Alexander, 

7  Bin«:.  119  ;  1  Tyr.  9  ;  1  C.  &  J.  143  .  69,  80,  103,  120 

v   North  Eastern  Ry.  Co..  6  B.  &  S.  340  :  34  L.  J.  Q.  B.  152  ; 

11  Jur.  N.  S.  619  ;  13  W.  R.  651  ;  29  J.  P.  692  .     171,  174 

256,  545,  576 
Alfred  r.  Farlow,  8  Q.  B.  854  ;  15  L.  J.  Q.  B.  258  ;  10  Jur.  714  .       55 

62,  123 
Allardice  v.  Robertson,  1  DowN.  S.  514  ;    1  Bow  &  Clark,  495  ;  6  Shaw 

&  Dun,  242  ;  7  Shaw  &  Dun.  691  ;  4  Wils.  &  Sh.  App.  Cas.  102       .     189 
Allen  v.  Eaton,  1  Roll.  Abr.  54  .  .  .  .  .77 

Alleston  v.  Moor,  Hetl.  167  .  .  .  .  .  .       72,  77 

Allhausen  r.  Labouchere  (C.  A.),  3  Q.  B.  D.  654  ;    47  L.  J.  Ch.  819  ;    48 

L.  J.  Q.  B.  34  ;    27  W.  R.  12  ;    39  L.  T.  207  ;    42  J.  P.  742,  546,  549,  661 
Allsop  &  wife  r.  Allsop,  5  H.  &  N.  534  ;  29  L.  J.  Ex.  315  ;  6  Jur.  N.  S. 

433  ;  8  W.  R.  499  ;  36  L.  T.  O.  S.  290  .  .  87,  300,  336,397 

Amann  r.  Damm  (1860),  8  C.  B.  N.  S.  597  ;  29  L.   J.   C.  P.  313  ;  7  Jur. 

N.  S.  47  ;  8  W.  R.  470  ..  .       214.  017,  223,  236,  2*9,  529 

Anderson  o.  Bank  of  British  Columbia  (C.  A.),  2  Ch.  D.   644  ;    45   L.  J. 

Ch.  449  ;  24  W.  R,  724  ;  35  L.  T.  76  .  .  .     554 

v.  Dunn,  6  Wheat.  204  .  .  .  .  .  .       .     49 » 

v.  Hamilton,  2  Brod.  &  B.  156,  n.  ....     563 

o.  Liebig's  Extract  of  Meat  Co.  Limited,  45  L.  T.  757    .  .    146 

343,  349 

Andres  v.  Wells,  7  Johns.  (N.  York)  260 413 

(21) 


TA/iU'J  OF  CM  .SAX 


[xxii] 


(The  paging  refer?  to  the  [*]  pages.) 


And— Ayr. 

Andrews,  Ex  parte,  In  re  Fells,  4  Ch.   I).   509  ;  46  L.  J. 
W.  R.  382  ;  30  L.  T.  38      . 

V.   Chapman,  3  C.  &  K.  286 

v.  Marris  &  another,  7  Dow],  712 

Angle  v.  Alexander,  7  Bing.  119  ;  1  Tyrw.   9  ;    1    ('.  &  J. 

"P.  870 

Annison  v.  Blofleld,  Carter,  214 
Aiioii.,  1  Ohio,  83,  n. 

2  Barnard.  138.     See  R.  v.  Osborn 

(Exch.)  1  Roll.  Abr.  55 

Pasch.  11  Jac.  I.  ;  1  Roll   Abr.  748 

1  Roll.  Abr.  82 

3  Leon.  213  ;  1  Roll.  Abr.  05 

Holt,  052  ..  . 

1  Roll.  Abr.  37      . 

1  Roll.  Abr.  81 

68  N.  Y.  202 

Style,  392  . 

(1590)  Moo.  459      . 

(1597)  Cro.  Eliz.  503     . 

(1598)  Cro.  Eliz.  043  ;  Koy,  73 

(1038)  Cro.  Jac.  510     . 

(1650)  Style,  251 

(1096)  2  Salk,  644 

(1707)  11  Mod.  99 

(1711)  1  Salk.  94 

Ansell  v.  Waterhouse,  6  M.  &  S.  385 

Anthony  v.  Halstead,  37  L.  T.  433     . 

Archbold  v.  Sweet,  1  Moo.  &  Rob.  162 ;  5  C.  &  P.  219 

Armitage  ».  Dunster,  4  Dougl.  291 

Armstrong,  Re,  9  Cox,  C.  C.  342  .... 

&  others  v.  Armit  A  others,  2  Times  L.  R.  887 

Arne  v.  Johnson,  10  Mod.  Ill     . 

Arnold  v.  Clifford,  2  Sumner,  238      . 

Ashley  v.  Harrison,  Peake,  194,  256  ;  1  Esp.  48 

-  v.  Taylor,  37  L.  T.  522  ;  (C.  A.)  38  L.  T.  44 
Ashmore  v.  Borthwick,  49  J.  P.  792  ;  2  Times  L.  R.  113,  209 
Ashworth  v.  Outram,  9  Ch.  D.  483  ;  27  W.  R,  98  ;  39  L.  T.  441 
Astley  (Sir  John)  v.  Younge,  2  Burr.  807  :  2  Ld.  Ken.  536      . 
Aston  v.  Blagrave,   1  Str.  617  ;    8  Mod.  270  ;    Fort.  206 

1369 
Atherley  v.  Harvey,  2  Q.  B.  D.  524 

36  L.  T.  551  ;" 41  J.  P.  661 
Atkins  v.  Perrin,  3  F.  A  F.  179 

Atkinson  v.  Fosbroke,  L.  R,  1  Q.  B.  628  ;  85  L.  J.    Q.  B.   182 ; 
N.  S.  810  ;  14  W.  R.  832  ;  14  L.  T.  553  ;  30  J.  P. 

v.  Hartley,  8  MeCord.  203      .... 

Attorney-General    v.    Bradbury  A'   Eyans,   7  Ex.  97  ;    21  L.  J. 

16  Jur.  130        .... 

v.  Compton,  1  Younge  &  Collver,  Eq.  417    . 

v.  Le  Merchant,  2  T.  R.  201  n.      . 

i\  Pearson,  3  Mer.  405 

v.  Siddon,  1  Cr.  &Jer.220 

of  New   South    Wales    ».    Macpherson,   L.    I!. 

268  ;  7  Moo.  P.  C.  (X.  S.)  49  ;  39  L.  J.  P.  ('.  59 
Atwill  v.  Mackintosh,  6  Lathrop  (120  Mass.)  177 
Austin  (Sir  J.)  v.  Culpepper,  2  Show.  313  ;  Skin.  123 
Austria  (Emperor  of)  v.  Day  A  Kossuth,  3  De  G.  F.  &  J.   217 

Ch.  690;  7  Jur.  N.  S.  *639  .... 

Axmann  v.  Lund,  L.   R.   18  Eq.  330;   43  L.  J.  Ch.  655  ;  22 


20    22 
"  '498! 


46  L.  J.  Q.  B.  518 


PAGE 

Bkcy.  23  ;    25 

.       .     498 
255,  259 
.       .     407 
14:!  ;  4  M.   & 

69,  80,  103,  120 

.     70,  110 

.       68 

.     429 

.     110 

.       9'6 

.     101 

01,  122 

.     127 

.     141 

.     131 

.     330 

530,  594 

.     530 

123,  126 

60 

76 

.     506 

.     582 

6,  20,  22,  102 

501 

516 

.     581 

.       .       27 

.     564 

.       .     593 

342,  347 

67,  80,  115 

8 

15.  303,  329 

.     548 

.     257,  263 

.     369 

.     192,  193 

2  Lord  Raym. 

71,72 
25  \V.  R.  727  ; 

.     549 

.     145 

12  Jur. 

503,  528,  515 

.       .       61 

Ex.  12  ; 

.     377 

.       .     873 

.     600 

699 

414 


401,  408 


P.  C. 

.     491 
.       .     208 
0.  13,  20 
L.  J. 

352,  358 
W.  R.  789. 

146,  348,  349 


10 


(22) 


tabu:  of  casks. 


[*  xxiii.] 

G8,  To,  78,  79,  85,  568 


(The  paging  refers  to  the  [*]  pagcp.) 
AynBrCravcn,  4  Xev.  &  M.  £20  ;  2  A.  &  E.  2         . 

Baal  9.  Baggerly,  Cro.  Car.  326  .  .  55,122 

Baboneau  p.   Parrell,  15  C.  U.  360;  24  L.  J.  C.  I'.  0;   3 

1  Jur.  N.  8.  114  . 
Bagg's  Case,  11  Rep.  93,  95  ;  2  Rolle  Rep.  79.  173,  224 
Bailey  p.  Kalamazoo  Publishing   Co.    (1879),   4  Chaaey, 

251 

Baillie  p.  Goodwin  &  Co.,  33  Cli.  D.  604  ;  Co  L.  J.  ( !h   849 

55  L.  T.  56 

Bainbridge  p.  Lax,  9  Q.  B.  819 • 

Baines  p  Bromley  (C.  A.),  G  Q.  B.  D.  695  ;  50  L.  J.  Q.  B.  465  ;  29  \\  .  R. 

706 ;  44  L.  T.  915      .  

Baker  r   Morfue  nl  Morphew,  Sid.  327  :  2  Keble,  202       .  .  70 

v   Newton,  W.    N.    1876,    p    8;  1  Charley,  107;  Bitt.  80;  20  Sol. 

J.  177  ;  60  L.  T.  Notes,  157  . 
o  Pierce,  2  Ld.  Raym.  959;  Holt,  6.14;  6  Mod.  23 


C.    L.    R.   42 

.    82, 

(40   Michigan) 

44, 
:  34 W.  R.  TNT  ; 


r.  Wilkinson,  Car.  &  Mar.  899     . 

and  others  v.  Piper,  2  Times  L.  R.  783 

Baldwin  p.  Elphinston,  2  W.  Bl.  1037     . 

p.  Flower,  3  Mod.  120 

Ball  r.  Roane,  Cro.  Eliz.  308       . 

Banister  p.  Banister  (1683),  4  Rep.  17 

Bank  of  British  North   America  v.    Strong,  1    App.  Cas.  807 

627  

Bankes  p.  Allen,  Roll.  Abr.  54  .... 

Baptist,  Churches  p.  Taylor,  3  Dunlop&  Bell  (2nd  series),  1030 
Barbaud  p.  Hookham,  5  Esp.  109      . 
Barbara's  Case.  4  Rep.  20  ;   Yelv.  21 


2  Salk.   695  ; 
18,  55,  62,  122, 


153 


158,  580, 
.     15,  92, 

.   14,  141, 
84  L.  T. 
.  191, 


111 
506 

105 

519 

540 

371 
,  76 

548 

123 
561 
145 

559 

400 
119 
144 


Barley  v.  Walford,  9  Q.  B.  197  ;  15  L  J.  Q.  B.  369  ;  10  Jur 
Barmund's  Case,  Cro.  Jac.  473  .... 
Barnabas  p.  Traunter  (1641)  1  Vin.  Abr.  396    . 
Barnard  p.  Salter.  W.  N.  1882,  p.  140  . 
Barnes  p.  Holloway,  8  T.  R.  150 
r.  Prudlin,  or  Bruddel,  1    Sid.  396  ;     1  Vcnti 

2  Keb.  451  ..... 
Barnet  v.  Wells  (1700).  12  Mod.  420 
Barnett,  Be,  29  L.  J.  Ch.    871 
v.  Allen,  8  II.  &.  N.  876 

4  Jur.  N.  S.  488 
Barney  v.  United  Telephone  Co 

573 
Barratt  p.  Collins,  10  Moo.  451 
Barrett  p.  Long,  3  II.  L.  C.  895 


91' 


61,  8 


230 
75 

.       .     462 

244 

60,  102,  122 

16,  92,  145 

300 

336 

30 

565 


87, 
301, 


81,  128,  529, 
1  Lev.     261  ; 
300, 


27  L.    J.    Ex.    4L 


23  Ch.  D.  394 


F.    &   F.    125  ; 
23,  63,  84,  111, 
33  W.  R.  576  ;  52  L.  T. 

147, 


Ir.  L.  R.  439  ;  8  Ir.  L.  R.  331 


Barrofis  v.  Ball  (1614),  Cro.  Jac,  331      .... 
Barrow  v.  Lewellin,  Hob.  62  . 
Barry  p.  Barclay,  15  C.  I?.  N.  S.  849 

v.  M'Grath,  Ir.  R.  3  C.  L.  576  ... 

Barton  p.  Taylor,  11  App.  Cas.  197  ;  55  L.  J.  P.  C.  1  ;  55  L.  T. 
Barwell  p.  Adkins,  1  M.  &  Gr.  807 ;  2  Scott,  N.  R.  11 
Barwis  v.  Keppel  (1766),  2  Wils.  314       .... 

Bash  v.  Somner,  20  Penns.  St.  R.  159 

Bassell  v.  Elmore,  48  N.  Y.  R.  563  ;  65  Barb.  627 

Bateman  et  ux.  v.  Lyall  et  ux.,  7  C.  B.  N.  S.  638    . 

Bathurst  v.  Coxe,  1  Keb.  451,  465  ;  Sir  T.  Ravin.  68    . 

Baxter,  Ex  parte,  28  J.  P.  326  ...... 

Baylis  v.  Lawrence,  11   Add.  &    E.  920;  3  P.  &  D.  528  ;    4  Jur.  (352  ;  4 
J   P.  443  .  .  .  .  .        94,  95,  270,  362, 

Beach  v.  Rannev,  2  Hill  (N.  Y.)  309 

et  vx.  v.  Beach,  2  Hill  (N.  Y.)  260  ...  .  399, 

(23) 


158 

129,  278 


.    305, 
804,  332, 


305 
138 
462 

566 

350 

419 
276 
280 
119 
152 
556 
323 
491 
28D 
195 
399 
383 
570 
505 
431 

578 
301 
540 


xxiv  TABLE  OF  CASKS. 

(.The  paging  refers  to  to  the  [*]  pages.)  [*xxiv.] 

Bea— Boa.  page 

Beamond  v.  Hastings,  Gro.  Jac.  210  .  .  .  .  .72 

Beatson  V.  Skene,  5  II.  &.   N.  888  ;  29  L.  J.  Ex.  430  ;    (i  Jur.  N.  S.  780  ; 

2L.  T.  378      .....  .205,207,555,563,572 

Beatty  and  others  v.  Gillbanks,  0  Q.  B.  D.  808  ;  51  L.  .).  M.  C.   117  ;    31 

W.  R.  275  ;  47  L.  T.  194  ;  46  J.  P.  789  ;  15  Cox,  C.  ( '.  188     .  .     380 

Beauchamps  (Lord)  e.  (Sir.  R.  Croft,  Dyer,  285a  .  .  .     191 

Beaumont  r.  Barrett,  1  Moore,  P.  C.  C.  76  ...  490,  491 

Beavor  v.  Hides,  2  Wilson,  300  .  .  .  .  .  .     123 

Beddow  v.  Beddow,  9  Ch.  D.  89  ;  47  L.  J.  Ch.  588  ;  20  W.  P..  570 

359,  802,  363 
Bedford  v.  Colt  (not  reported)  ....  551,660,661 

Bedwell  v.  Wood,  2  Q.  B.  D.  626  ;  36  L.  T.  213  .  .  .       .     368 

Behrens  v.  Allen,  3  P.  &.  F.  135  ;  8  Jur.  N.  S.  118  .  .         171,  538 

Bell  v.  Byrne,  13  East,  554  .....  59,  529,  564 

v.  Midland    Railway  Co.,  10   C.  B.  N.  S.  287  ;  30   L.  J.  P.  C.  278  ; 

9  W.  R.  612;  4L.  T.  293     .  .  .  .  .  85,  295,  311 

v.  Parke,  10  Ir.  C.  L.  R.  279  ;  11  Ir.  C.  L.  R.  413  .  207,  211,  242,  244 

315,  321 

v.  Stone,  1  B.  &  P.  331        .  .  .  .  .  .       .       20 

—  and   another   v.  Stacker,  10  Q.  B.  D.  129  ;    52   L.  J.  Q.  B.  49  ;    47 

L.   T.    624 403 

Bellamy  v.  Bureli,  16  M.  &  W.  590  .  .  .  .        66,  82 

Belt  v.  Lawes  (C.  A.),  12  Q   B.  D.  356;    53  L.  J.  Q.  B.  249  ;    32    W.  R. 

607  ;  50  L.  T.  441  .  .  .  .  297,  583 

v. ,  51  L.  J.  Q.  B.  359    .  .  .  .  .         535,  633,  634 

Bendish  v.  Lindsay,  11  Mod.  194       .  .  .  .  .  .56 

Bennett  v.  Barry,  8  L.  T.  857       .  .  .  .  .  .       .     241 

v.  Bennett,  6  C.  &.  P.  588    .  .  .  .  .         165,  314 

■    v,  Deacon  (1846),  2  C.  B.  628  ;  15  L.  J.  C.  P.  289         .  .  214,  219 

et  ii.v.  v.  Watson  and  another,  3  M.  &  S,  1     .  .  .  .     511 

Benson  v.  Flower,  Sir  W.  Jones,  215     •  .  .  .  .       .     407 

Berryman  v.  Wise,  4  T.  R.  366  ....  .  G5,  558 

Besant  v.  Wood,  12  Ch.  D.  605  ;  40  L.  T.  445  .  .  .  .  872,  580 

Biddulph  v.  Chamherlayne,  17  Q.  B.  351      ....         177,  369 

Biggs  v.  Great  Eastern  Railway  Co.,  16  W.  R.  908  ;  17  L.  T.  482  .     174 

Bionell  v.  Buzzard,  3  H.  &.  N.  217  ;  27  L.  J.  Ex.  855  .  .       .       30 

Bill  v.  Neal,  1  Ley.  52    .        .  .  .  .  .  .  71,  73 

Bishop,  In  re,  Ex  parte  Smith,  13  Ch.  D.    110;    49  L.  J.   Ekcy.   1  ;    28 

'  W.  R.  174  ;    41  L.  T.  388 499 

v.  Latimer,  4  L.  T.  775    ...  28,  77,  99,  173,  261,  539 

Bishops'  (The  Seven)  Case,  4  St.  Tr.  300       .  .  .  .         562,  600 

Bittridge's  Case,  4  Rep.  19  ....  .         98,  108.  127 

Black  v.  Hunt,  2  L.  R,  Ir.  10  .....  .  G2,  84 

Blackburn  v.  Blackburn,  4  Bins;.  395  ;  1  M.  &  P.  83,  63  ;  8  C.  &  P.  146      269 
Blackham  v.  Pugh,  2  C.  B.  611  ;  15  L.  J.  C.  P.  290      .  .        145,  230,  240 

Blackmail  r.  Bryant,  27  L.  T.  491     .  .  .  .  .  62,  110 

Blades  v.  Lawrence,  L.  R.  9.  Q.  B.  374  ;  43  L.  J.  Q.  B.  133  ;    22  W.    H. 

643  ;  30  L.  T.  378 585 

Blagg  v.   Sturt,  10  Q.  B.  899,  900  ;  16  L.  J.  Q.  B.  39  ;  11  Jur.  101  ;  8 

L.  T.  O.  S.  135  .....  27,228,278,279,311 
Blake,  Be,  30  L.  J.  Q.  B.  32 5,  257 

r.  Albion  Assurance  Society,  4  C.  P.  D.  94;  48  L.  J.  C.  P.  109  ; 

27  W.  R,  321  ;  40  L.  T.  211  .     .     .     .  276 

r.  Appleyard:  3  Ex.  D.  195;  47  L.  J.  Ex  407  ;  26  W.  R.  592  .     371 

v.  Pilfold,  1  M.  &  Rob.  198      .  .  .  .  218,  226,  563 

V.  Stevens  and  others,  4  F.  &  F.  232  ;    11  L.  T.  543  .    6,  28,  155,  171,  173 

257  811 

Bliss  v.  Stafford,  Owen,  37  ;  Moore,  188  ;  Jcnk.  147                        .  .     140 

Bloodworth  r.  Gray,  8  Scott,  N.  R.  9  ;  7  M.  As  Gr.  384            .            .  .       65 

Bluck  v.  Lovering,  1  Times  L.  R.  497          ....  5)2,570 

Blumley  ».  Rose,  1  Roll.  Abr.  73             .....  .     105 

Boaler  v.  Holder,  54  L.  T.  298           .            .            .            .            .  .     595 

(24) 


TABLE  OF  CASES.  xxv 

(The  paging  refers  to  the  [*]  pages  )  [*xxv.] 

Boa— Bri  pagr 

Boaler  ».*Holder,  3  Times  L.  R.  546  ;  51  J.  P.  277  .  .  .     595 

Bold  v.  Bacon,  Cro.  Eliz,  346       .  .  .  .  .  .       .     140 

Bolton  v.  O'Brien,  16  L.  R.  Ir.  97,  483  ...  98,  276 
(Sir  William)  ®.  Dean,  cited  in  Austin   v.  Culpepper,   2  Show.  313; 

Skinner,  123  .  .  .  .  •  •  •  .13 

Bond  v.  Douglass,  7  C.  &  P.  626  .  .  .  156,  276,  334,559 

Boosey  v.  Wood,  3  II.  &  C.  4S4  ;  34  L.  J.  Ex.  65  ;    11  Jur.  N.  8.  181  ;  13 

W.  R.  317  ;  11  L.  T.  639 g    540,  654 

Booth  and  others  v.  Briscoe  (C.  A.),  2  Q.  B.  D.  496  ;  25  W.  R.  838  .       26 

Boston  v.  Tatam,  Cro.  Jac   623  .....  59 

Boston  Diatite  Co.    v.   Florence    Manufacturing    Co.    and    others,    114 

Mass.  69    .........  :r,,i 

Botterill  and  another  v.  Whitehead,  41  L.  T.  588  .      71,  78,  173,  216.  221 

239,  270,623 
Boulton  v.  Chapman  (1640).  Sir  W.  Jones,  431  ;  March  20,  pi.  45  .     193 

Bourke  ».  Warren,  2  C.  &  P.  307         .  ....     129,131,567 

Bourn's  (Sir  John)  Case,  cited  Cro.  Eliz.  497  .  .  •     132 

Bowden  v.  Allen,  39  L.  J.  C.  P.  217  ;  18  W.  R.  695  ;  22  L.  T.  342  .     552 

and  another  d.  Russell,  46  L.  J.  Ch.  414  ;  36  L.  T.  177      .       .    339,498 

Bowen  v.  Hall  and  others,  6  Q.  B.  D.  333  ;  50  L.  J.   Q.   B.   305  ;    29  W. 

R.  367  ;  44  L.  T.  75  ;  45  J.  P.  373  15 

Boxe  i\  Barnaby,  1  Roll.  Abr.  55  ;  Hob.  117  .  ...  .76 

Boydell  ».  Jones,  4  M.  &.  W.  446  ;  7  Dowl.   210  ;  1  Horn  &  II.  408  .        21,  26 

99,  116,  261 
Boyle  v.  Wiseman,  10  Ex.  647  ;  24  L.  J.  Ex.  160;  24  L.  T.  (O.S.)274,  502,  564 

— —  v.      11  Ex.  360  ;  24  L.  J.  Ex.  2S4  ;  25  L.  T.  (O.S.)  203       .     564 

Bracebridge  ».  Watson,  Lilly  Entr.  61  ...     300 

Bracegirdle  v.  Bailey,  1  F.  &  F.  536        .  .  .  .  .       .     321 

—    '     v.  Orford,  2  .Man.  &  S.  77 13 

Bradbury  v.  Cooper,  12  Q.  B.  D.  94;  53  L.  J.  Q.  B.  558  ;    32  W.  R.  32  ; 

48  J.  P.  198  .  .  .  .  •  •  •     534 

Bradlaugh,  Ex  parte,  3  Q.  B.  D.  5C9  ;    47  L.  J.  M.    C.    105;    26  W.  R. 

758  ;  38  L.  T.  680  .  .  .  .  .  ■     473 

and  Besant  ».  The  Queen  (C.A.),  3  Q.  B.  D.  607;   48  L.  J. 

M.  C.  5 ;  26  W.  R.  410  ;  38  L.  T.  118  ;  14  Cox,  C.  C.  68 

472,  490,  593,608 
S   C  sub  nomine  R.  v.  Bradlaugh  and  Besant  2  Q.  B.  D. 
569;  46  L.J.  M.  C.  286  ....     5,606 

Bradley  v  Methwyn,  Selwyn's  Nisi  Prius,  982  ....        3 

Bradt  v.  Towsley,  13  Wend.  253  .  .  .  .  .       .     302 

Brady  v.    Youlden,    Kerferd   and  Box's  Digest  of  Victoria  Cases,   709  ; 

Melbourne  Argus  Reports,  Sept.  6th,  1867  .  .  69,  82,  303,  306 

Brand  &  wife  v.  Roberts  and  wife,  4  Burr.  2418        .  .  .  60,  86 

Brandreth  v.  Lance  (1839),  8  Paige,  24  (New  York  Ch.)  .  .    348,  357 

Brandrick  r.  Johnson,  1  Vict.  L.  R.  Cases  at  Law,  306     .  .  .  68,  78 

Bray  v.  Ham,  1  Brownl.  &  Golds.  4     .  .  .  .  81 

(Sir  Edward)®.  Andrews  (1564),  Moore,  63  .  .  .      54,60 

Brayne  v.  Cooper,  5  M.  &  W.  249        .  .  .  .     15,  56,  68,  80,  85 

Bree  r.  Marescaux  (C.  A.),  7  Q.  B.  D.  434  ;  50  L.  J.   Q.  B.  676 !  29  W. 

R.  858;  44  L.  T.  644,  765         .....     334,  409,  518 

Brernbridge  v.  Latimer,  12  W.  R.  878  ;  10  L.  T.  816  .*  101,  177,  540 

Brenon  v.  Ridgway,  3  Times  L.  R.  592  .  .  .  .       .       37 

Brent  v.  Spratt,  Times,  Feb.  3rd,  1882        .....     78.117 

Breslin  v.  Peck,  h38  Hun  (45  N.  Y.  Supr.  Ct.)  C23         .  .  .       .     522 

Bretherton  and  others  v.  Wood,  3  B.  &  B.  54  .  .  .  .516 

Brett  v.  Watson,  20  W.  R.  723     .  .  .  .  .  .    155,  273 

Brewer  r.  Dew  and  another,  11  M.  &  W.  625  .  .  .  .13 

Brewster's  Case,  Die  L.  L   76      .  .  .  .  .  .  486,  487 

Bridges  o.  Playdel,  Brownl.  &  Goldsb.  2      .  .  .  .  .56 

Brigg's  Case,  Godb.  157  .......      55 

Briggs  c.  Hartley  (1850),  19  L.  J.  Ch.  416     .  .  .  .  .     463 

(25) 


xxvi  TABLE  OF  CASKS'. 

(The  paging  refers  to  the  [*]  pages.)  [*  sxvi] 

Bri-Bur.  pack 

Brine  v.  Bazelgette,  3  Ex.  692  ;  18  L.  J.  Ex.  348  .  .  .    310,569 

Brinsmead  r.  Harrison,  L.  R.  7  C.  P.  54?  ;  41  L.  J.  C.  P.  1CU;  SO  W.   B. 

784;  27  L.  T.  99  .  .  .  .  .  .  316,  522 

British  and  Foreign  Contract  Co.  v.  Wright,  32  W.  R.  413    .  .     517,  553 

Briton  Life  Association,  Ld.  v.  Roberts,  2  Times  L.  R.  319  .  .     347 

Broadhurst  v.  Willey,  W.  N.  1876,  p  21  .  .  .       .     370 

Brocklebank  v.  King's  Lynn  Steamship  Co.,  3  C.  P.  I).  365  ;  47  L.  .).  C. 

P.  321  ;  38  L.  T.  489  .  .  .  .  ,  .       .     407 

Brodribb  v.  Brodribb  &  Wall,  11  P.  D.  CO;  55  L.  J.  P.  D.  &,  A.  47  ;    34 

W.  R.  580;  50  J.  P.  407  .  .  .  .  .       .     497 

Broke's  Case.  Moore,  409         .  .  .  .  .  .  .75 

Bromage  v.  Prosser,  G  D.  &  R.  296  ;  4  B.  &  C.  247  ;  1  C.  &  P.  475,   673,     165 

2u7,  246,  269,  271,  285,  529 

Bromfield  v.  Snoke,  12  Mod.  307 82 

Brook  v.  Evans,  29  L.  J.  Ch.  616  ;  6  Jur.  X.  S.  1025  ;  8  W.  R.  688     .  254,  495 

v.  Montague  (Sir  Henry)  (1606),  Cro.  Jac.  90  .  .  .189 

v.  Rawl,  4  Ex.  521  ;  19  L.  J.  Ex.  114.  .  .  .141,  143 

v.  Wise  (1601),  Cro.  Eliz.  878  .  .  .  .  .65 

Brooke  v.  Avrillon,  42  L.  J.  C,  P.  126  .       .     278 

v.  Clark,  Cro.  Eliz.  328  ;  1  Vin.  Abr.  4G4    .  .  .  .71 

Brookes  v.  Tichborne,  5  Ex.  929  ;  20  L.  J.  Ex.  69  ;  14  Jur.  1122  .     2!,  560 

Brooks  o.  Blanshard  (18:33),  1  Cr.  &  M.  779  ;  3  Tyr.  844         .  215,  220,  244 

Broome  v.  Gosden,  1  C.  B.  728  .  .  .        100,  101,  129,  507,  582 

Brown,  Report,;  5  B.  &  S.  230  ;  33  L.  J.  Q.  B.  19-J  ;  13  W.   R.    821  ;  10 

L.  T.  453 491 

v.  Ea  Ward  v.  Morse  (C.  A.),  23  Ch.  D.  377  ;  52  L.  J.  Ch.  524 ;  31 

W.  R.  936  ;  49  L.  T.  68  .  .  .  .  .     371 

v.  Brine,  1  Ex.  I).  5  ;  45  L.  J.  Ex.  129  ;  24  W.  R.  177  ;  33  L.  T.  703.  8,  22 

v.  Croome,  2  Stark.  297  .  .  .  .     230,  247,  286,  509,  570 

v.  Dorse,  R.  v.  Kettle,  17  Q.  B.  D.  7C1  ;   55  L.    J.  Q.  B.  470';  34 

W.  R.  776  ;  54  L.  T.  875 587 

v.   Hirley,  5  Up.  Can.  Q.  B.  Rep.  (Old  S.),  734    .     .     .  522 

v.   Lane  or  Low,  Cro.  Jac.  433  ;  1  Roll.  Abr.  79         .   .  132 

v.  Murray,  4  D.  &  R.  830       .  .  .  .  .  .556 

v.  Nickerson,  1  Gray,  1     .  .  .  .  .  88 

v.  Smith,  13  C.  B.  590;  22  L.  J.   C.  P.   151  ;    1  C.  L.  R.  4;    17 

Jur.  807 .80,  293,299 

v.  Wootlon,  Cro.  Jac.  73;  Yelv.  67  ;  Moo.  762  .  .     310,  522 

Browne  v.  Murray,  Ry.  &  Moo.  254.  .....     570 

Bruce  v.  Nicolopulo,  11  Ex.  133  ;  -24  L.  J.  Ex.  324         .  ...     564 

Brunkard  v.  Segar,  Cro.  Jac.  427  ;  Hull.  13  ;   1  Vin.  Abr.  427         .  62,  84 

Brunswick  (Duke  of)  v.  Harmer,  14  Q.  B.  185  ;  19  L.  J.  Q.  B.  20  ;  14  Jur. 

110  ;  3  C.  &  K.  10  .         101,  169,  230,  238,  296 

521,  559,566,  Cll 

».  Pepper,  2  C.  &  K.  083     .  .  .      310,  522,  053 

Bruton  o.  Dowries,  1  F.  &  F.  008  .  .  .  .  .22,  194 

Bryant,  In  re,  4  Ch.  D.  98  ;  25  W.  R.  230  ;  35  L.  T.  489    .  .  .     499 

v.  Loxton,  11  Moore,  344  .....      69,82 

Bryce  v.  Rusden,  2  Times  L.  R.  435  .....       37 

Buchanan  v.  Taylor,  W.  N.  1876,  p.  73  ;  Bitt.  p.  131  ;  20  Sol.  J.  298  ;  00 

L.  T.  Notes,  268 548 

Buck  r.  Hersey,  31  Maine,  558      .  .         '    .  .  .  09 

Buckingham  r.  Murray,  2  C.  &  P.  46  .  .  .  .  .     529 

Buckley  v.  Wood,  4  Rep.  14  a  ;  Cro.  Eliz.  230  .  .  191,  193,  250 

Buckton  v.  Higgs,  4  Ex.  D.  174 ;  27  W.  R.  803  ;  40  L.  T.  755  .  370 

Buenos  Avres  Gas  Co.  v.  Wilde,  29  W.  R.  43  ;  42  L.  T.  657  .  495,  496 

Buist  p.  Bridge,  29  W.  R.  117  ;  43  L.  T.  432  .  .  .  .     499 

Bull  r.  Chapman,  8  Ex.  104  .  .  .  .  .  .       .       7 

Burcher  v.  Orchard  et  n.r.  (1052),  Style,  349  ;  1  Roll.  Abr.  781         .         404,  420 

Burder*. ,3  Curt.  827  .  .  .  .  .  .       .     448 

Binder  v.  Heath,  15  Moore,    P.  C.  C.  80  ;  Brod.  &  Fremantle,  234  .     406 

Burdett  v.  Abbot,  5  Dow,  II.  L.  165  ;  14  East,  1    .   150.  157,  490,  491,  502,  559 

(26) 


PAGE 


TABLE  OF  CASES. 

[*xxvii]  (The  paging  refers  to  the  [*]  pages.) 

Bur-Cas. .  Colmanj  U  East,  163  .... 

Burgess  r   Bracher,  8  Mod.  238  ;    2  Ld.  Raym.  1366  ;  1  Stra.  594  96,  582 

Burnet  v.  Wells  (1700),  12  Mod.  420  ...  ■      81 

Burnett  v    Chetwood,  cited  in  Southey  v.  Sherwood,  2  Mer.  p.  441     .    352,  352 

„.Tak,  45  L.  T.  743  ;  W.  N.  1882,  p.  8  .     139,  146,  172,  343,  349 

Burnes  Champion.  Hyndman  and  Williams,  Ex  parte,  2  Times,  L.  R.  352,  506 
Bursill'  v.  Tanner,  13  Q.  B.  I).  691  :  32  W.  R.  *27  ;  50  L.  T.  589  .     400 

_     ,,     -^     (C.  A.),  16  Q.  B.  D.l;  55  L.J.  Q.  B.  53;    53  L.  T.  445,  401 
Burton  v.  Plummer,  2  A.  &  E.  343  .  .  •  •       •     565 

Butt  v  Conant,  4  Moore  195  ;  1  Brod.  &  Bing.  548  ;  Gow,  84        .        493,  589 

Q.  C.  r.  Jackson,  10  Ir.  L.  R.  120 190 

But terworth  v.  Robinson,  5  Ves.  709  ....  •     340 

Button  r.  Heyward  et  ux.  (1722),  8  Mod.  24      .  .  .  1S\;M\!i') 

Byam  v.  Collins  (1886),  39  Hun.  (40  N.  Y.  Sup.  Ct.),  204  .  .  219,  2,4 

Byrchley's  Case,  4  Rep.  16 J6 

Byron  (Lord)  ».  Johnston,  2  Mer.  29  .  .  .  .  •     ooJ 


564 


187 
405 
499 

277 


C v.  Lindsell,  11J.  P.  352 

Caesar  i\  Curseny,  Cro.  Eliz.  305        .....  67, 

Calder  i\  Halket,  3  Moo.  P.  C.  C.  28      . 

Caley  v.  Caley,  25  W.  R.  528 

Callow  v.  Young,  56  L.  T.  147  . 

Camfield  v.  Bird,  3  C.  &  K.  56  .... 

Campbell  v.  Spottiswoode,  3  B.  &  S.  769  ;  32  L.  J.  Q.  13.  185  ;  27  J.  P. 
501  ;  9  Jur.  N.  S.  1069  ;  11  AY.  R.  569  ;  8  L.  T.  201  ;  S.  C. 
at  Nisi  Prius,  3  F.  &.  F.  421  ;     .  20,  28,  33,  33,  39,  40,  49 

and  another  r.  The  Queen,  11  Q.  B.  799  ;  17  L.  J.  M.  C.  89  ,     .     607 

Cane  v.  Golding  (1649)    Style  169,  176 HI.  144 

Cann  v.  Cann  (Mrs.  Farley's  case),  2  Ves.  sen.  520  ;  3  Hare,  333,  n.  .     496 

Canned  v.  Curtis,  2  Bing.  N.  C.  228  ;  2  Scott,  379  ...  06,  558 

Capel  v.  Powell  and  another,  17  C.  B.  N.  S.  743  ;  34  L.  J.  C.  P.  168  ;  10 

Jur.  N.  S.  1255  ;  13  W.  R.  159  ;  11  L.  T.  421        .  .       .     404 

and  others  r.  Jones,  4  C.  B.  259  ;  11  Jur.  396  .  .         103,  114 

Capital  &  Counties  Bank  v.  Henty  &  Sons  (in  C.  P.  D.),  28  AY.   R.   490  ; 

42  L.  T.  314 U6 

(C.  A.),  5  C.  P.  D.  514  ;  49  L.  J.  C.  P.  830  ;  28  Av  .  R.  851  ;  43 

I,  T.  651  ;  45  J.  P.  188       .  .  .  102,  113,  116,  240,  567 

(II   L.),  7  App.  Cas.  741 ;  52  L.  J.  Q.  B.  232  ;    31  AV.   R.   157  ;    47 

L.  T.  662  ;  47  J.  P.  214  .  .  24,  102,  113,  116,  240,  567 

Carmiehael  v.  Waterford  &  Limerick  Ry.  Co.,  13  Ir.  L.  R.  313  273,  311 

Cam  v.  Osgood,  1  Lev.  280      .  .  .  .  •  .72 

Carpenter  v.  Tarrant,  Cas.  Temp.  Hardwicke,  339        .  .  .       .       59 

Can-  v.  Duckett,  5  H.  &.  N.  783  ;  29  L.  J.  Ex.  468  .  142,  540,  687 

t\  Jones,  3  Smith,  491  ;  S.  C.  sub  mm.  Stiles  v.  Nokes,  7  East,  493         22 

46,  176,  280,  312 

(Sir  John)  v.  Hood,  1  Camp.  355,  n 34,   48,  49 

Carr's  Case,  Henry,  7  Howell's  State  Trials,  1111           .             .             .  3ol 

Carroll  ».  Bird,  3  Esp.  201 202 

v.  Falkiner,  Kerferd  &  Box  Die;,  of  Victoria  Cases,  216  .       .     329 

Carroll  v.  White,  33  Barb.  615  ;  42  N.  Y.  161  .  .  .  -77 

Carslake  v.  Mapledoram,  2  T.  R.  473 64 

Carta  Para  Mining  Co.,  In  re,  19  Ch.  D.  457  ;  51  L.  J.  Ch.  191  ;  46  L.  T. 

406 407 

Carter  v.  Jones,  6  C.  &  P.  64  ;  1  M.  &.  R.  281  .  .  .      •     ;«7 

v.  Leeds  Daily  News  Co.  &  Jackson,  W.  N.  T876,  p.  11  ;  Bitt.  91  ; 

1  Charley,  101  ;  20  Sol.  J.  218  ;  60  L.  T.  Notes,  196  .  552,  553,  659,  660 
Cartwright  v.  Wright,  5  B.  &  Aid.  615  ;  1  D.  &  Ry.  230  .  .         529,  564 

Casey  v.  Arnott,  2  C.  P.  D.  24  ;  46  L.  J.  C.  P.  3  ;  25  W.  R.  46  ;  35  L.  T. 

424  / 15,150,409,519 

(27) 


xxviii  TABLE  OF  CASES. 

(.The  paging  refers  to  to  the  [*]  pages.)  [*xxviii.] 

Cas-Cle.  page 

Cassidy  v.  O'Loghlen,  4  L.  R.  Ir.  1,  731 368 

Castro's  Case,  L.  R.  9  Q.  B.  219  ;  12  Cox,  C.  C.  358  .  .497,  501,  512 

Caulfield  v.  Whitworth,  16  W.  R.  936  ;  18  L.  T.  527  .     178,-272,  27s,  564,  500 
Cans  v   Roberts,  1  Keb.  -118;  s.  C.  sub nom.  Roberts  v.  Herbert,  Sid.  97  .  60,86 
Cave   r.  Tonv,  51  L.  T.  87,  515  ;  2  Times  L.  R.  355,  405  .  .  .     537 

Cawdry  v.  Highley,  al.  Tythay  al.  Tetley,  (To.  Car.  270  ;   Godb.  441      70,  75 
Ceely  v.  Hoskins,  Cro.  Car.  509        ...  .      56,02,124 

Chaddock  o.  Briggs,  13  Mass.  248  .  .  .  .  .       .      09 

Chadwick  v.  Herapath,  3  C.  B.  885  ;  16  L.  J.  C.  P.  101 ;  41).  <k  L.  65:5    323,  511 
Chalmers  v.  Payne,  2  C.  M.  &  R.  156  ;  1  Gale,  69  ;  5  Tyr.  706      .    25,  255,  256 

575.  570 

v.  Shackell,  6  C.  &  P.  475  .  .  .  171,173,178 

Chamberlain  v.  Boyd  (C.  A.),  11  Q.  B.  D.  407 ;    52  L.  J.  Q.  B.   277  ;    31 

W.  R.  572  ;  48  L.  T.  328  ;  47  J.  P.  372  84,  300,  828,  030 

- —         v.  White  or  Wilmore,  Cro.  Jac.  647  ;  Palm.  313  .      .     420 

Chambers  v.  White,  2  Jones,  383        .  .  .  .  .  .63 

Chantler  and  wife  v.  Lindsey,  16  M.  &  W.  82  ;  16  L.  J.  Ex.  16  ;  4  D.  &.  L. 

339     .  .  .  .  .  .  .  •  .      .     541 

Chapman,  Ex  parte,  4  A.  &  E.  773  .  .  .  .  .506 

v.  Lamphire,  3  Mod.  155        .  .  .  .  .      .       80 

Charlter  v.  Barret,  Peake,  32  .  .  .  .  .  .277 

Charlton  v.  Watton,  6  C.  &  P.  385  .  .  .  176,  253,  26s,  319 

Charlton's  (Lechmere)  Case,  2  My.  &.  Cr.  316        .  .  497,  501,  512 

Charnel's  Case,  Cro.  Eliz.  279      .  .  .  .  .  .      .       64 

Charter  v.  Peter,  Cro.  Eliz.  002  .  .  .  .  .121 

Chatfield  v   Sedgwick,  4  C.  P.  I).  459  ;  27  W.  R.  790  ;  41  L.  T.  438      .     372 
Cheese  v.  Scales,  10  M.  &  W.  488  ;  12  L.  J.  Ex.  13  ;  6  Jur.  958  ;  0  J.  P. 

732     .  .  .  .  .  .  .  20,  27,  287 

Cheltenham    &    Swansea  Wa2;on  Company,  In-  re,  L.  R.  8  Eq.  580  ;     38 

L.  J.  Ch.  330  ;  17  AV.  R.  403  ;  20  L.  T.  169      .  .  .  .     496 

Child  r.  Affleck  and  wife,  4  M.  &  R.  338  ;  9  B.  &.  C.  403        .  .      .     202 

Christie  v.  Christie,  L.  R.  8  Ch.  499  ;   42  L.  J.  Ch.  544  ;    21   W.  R.  493  ; 

28  L.  T.  007  . 192 

Chnbb  v.  Flannisran,  0  C.  &  P.  431        .....    101,435 

v.  Westley,  6  C.  &  P.  436    .....        278,280 

Church  v.  Perry,'  36  L.  T.  513     .  ■  .  .  .  .      .     550 

Churchill  (Lord)  i\  Hunt,  2  B.  &  Aid.  685  ;  1  Chit.  480      .        22,  177,  312,  564 
Clare  v.  Blakesley  and  others,  8  Dowl.  835  .  .  .  .      .     498 

Clarges  (Sir  Thomas)  v.  Rowe,  3  Lev.  30      .  .  .  .  .241 

Clark  v.  Chambers,  3  Q.  B.  D.  327  ;    47  L.  J.  Q.  B.  427  ;   26  W.  R,  613  ; 

38  L.  T.  454 333 

r.  Freeman  (1848),  11  Beav.  112  ;  17  L.  J.  Ch.  142  ;  12  Jur.  149   .  27, 

32,  81,  341,  353,  358 

v.  Molyneux,  3  Q.  B.  D.  237 ;  47  L.  J.  Q.  B.  230  ;  26  W.  R.  104  ; 

36  L.  T.  466  ;  37  L.  T.  694  ;  14  Cox,  C.  C.  10  ;  41  J.  P.  293  ; 

42  J.  P.  277  .  143,  214,  220,  242,  271,  272,  278,  282,  283,  530,  568 

v.  Newsam,  1  Ex.  131  .  .  .  .  .  273,  311 

Clarke  v.  Midland  Ry.  Co.,  44  L.  T.  131       .  .  .  .  .581 

v.  Morgan,  38  L.  T.  354  .  .  .  .  .        304,  332,  333 

v.  Taylor,  3  Scott  95  ;  2  Bing.  N.  C.  654  ;  2  Hodges,  65    .   173,  176,  312 

Clarke's  Case  de  Dorchester  (1619),  2  Roll.  Rep.  136    .  .  55,  101,  123 

Clarkson  V.  Lawson,  6  Bing.  266,  587  ;  3  M.  &  P.  605  ;  4  M.  &  P.  356  .  28.  173 
Clay  i).  People.  86  HI.  147  .....  .156,413 

v.  Roberts,  9  Jur.  N.  S.  580  :  11  W.  R,  649  ;  8  L.  T.  397  24,  27,  77 

v.  Yates,  1  II.  &  N.  73  ;  25  L.  J.  Ex.   237  ;  4  W.  R.  557  ;  27  L.  T. 

Old  S.  126  '.  .  .  .  .  .  ...         8 

Cleaver  v.  Sarraude,  1  Camp.  268  .....      .     217 

Clegg  v.  Laffer,  3  M.  &  Scott,  727  ;  10  Bhu;-.  250     .  .     101,  122,  125,  154 

Clement  r.  Chivis,  !)  B.  A:  C.  172  ;  4  M.  &  R.  127     .  .  .  .20 

V.  Fisher,  7  B.  &  C.  459  ;  1  M.  &  R.  281  .     129 

v.  Lewis  and  others,  7  Moor,   200;  3  Br.  &  Bing.    297  ;  3  B.  & 

Aid.  702 28,  99,  173,  261,  530 

f281       ' 


TABLE   OF  CASKS.  xxix 

(The  paging  refers  to  the  [*]  pages  )  [*xxix.] 

Cle— Cow  1MGE 

Clerk  b.  Dyer,  8  Mod,  290       .....  Co,  130 

Clifton  v.  Wells,  12  Mod.  634       .  .  .  •  .  •       •       65 

Clinton*.  Henderson,  13  Ir.  C.  L.  R.  App.  43         .  .  .  .636 

Clover  and  another  v.  Royden,  L.  R.  17  Eq.  190  ;  43  L.   J.    Ch.   665  ;  '.2 

W.  R.  254;  29  L.  T.  639 213,221,345,355 

Clutterbuck  v.  Chaffers,  1  Stark.  471  .  .  .  154,432,599 

Cobham  b.  Dalton,  L.  R.  10  Ch.  App.  655  ;  44  L.  J.   Ch.  7C2  ;  2:3  W.   R. 

865  500 

Cochrane,  Ex  parte,  In   re   Mead,  L.  R.  20  Eq.  2S2  ;  44  L.  J.  Bkcy.  87  ; 

23  W.  R.  726  ;  32  L.  T.  508  .  .  .  •  ■       ■     498 

Cockaine  v.  Hopkins,  2  Lev.  214 62,  84,  126 

Cockaine's  (Lady)  Case,  Sir  Thos.  Cockaine  and   wife  v.   AVitnam  (1586), 

Cro.  Eliz.  49    .  .  .  .  .  .  •  .54,  56 

Cockayne  *.  Hodgkisson,  5  C.  &  P.  543  .  .  .        209,217,575 

Coe  v.  Chambers,  1  Roll.  Abr.  75  ;  Vin.  Abr.  c.  b.  4        ....    .     132 

Colburn  v.  Patmore,  1  C.  M.  &  R.  73  :  4  Tyr.  677        .  .  8,  158,  317,  421 

Cole,  Marchant  &  Co.  v  Firth  and  another,  4  Ex.  D.  801  ;  40  L.  T.  857    .     371 
Coleman  v.  West  Hartlepool  Harbour  and  Ry.  Co.,  8  W.  It.  734  ;  2  L.  T. 

766  261,338,496 

et  ux.  v.  Harcourt,  1  Lev.  140        .  .  .  .  335,  395,  399 

Coles  v.  Haveland,  Cro.  Eliz.  250  ;  Hob.  12       .  .  .  .       .     Ill 

Colledge  v.  Pike,  56  L.  T.  124  .  .  .  .  .  517,  525 

Collett  b.  Dickenson,  11  Ch.  D.  687  ;  40  L.  T.  394  .  .       .     401 

Collier,  M.  D.  v.  Simpson,  5  C.  &  P.  73      .  .  .  .  77,  575 

Collins  v.  Carnegie,  3  N.  &  M,  703  ;  1  A.  &  E.  095        .        66,  78,  83,  555,  558 

b.  Yates  and  another,  27  L.  J.  Ex.  150  .  .  .  .     554 

Collison  c  Loder,  B.  N.  P.  10      .  .  .  ■  •  •       •     576 

Coleman  v.  Godwin,  3  Dousrl.  90  ;  2  B.  &  C.  285,  n  ...  56,  121 

Combe  v.  Edwards,  3  P.  D.  103 498 

Commonwealth  b.  Blanding,  3  Pick.  (20  Mass.),  304  .  .  10,  261 

v.  Clap,  4  Mass.  103        .  .  .  .  .       .      44 

The  v.  Kneeland,  Thacher's  C.  C.  C46        .  .  .160 

Conesby's  Case,  Year  Book,  9  Hen.  VII.  pp.  7,  8  ;  1  Roll.  Abr.  108  .       16 

Connors  v.  Justice,  13  Ir.  C.  L.  R.  451  .  .  .  •  .79 

Cook  v.  Cook,  100  Mass.  194       .  .  .  .  •  .       .     305 

v.  Field,  3  Esp.  133 178,  293,  808 

v.  Stokes  and  wife,  1  Moo.  &  R.  237  .  .  .  •       •     564 

r.  Ward,  6  Bing.  409  ;  4  M.  &  P.  99    .  ■»  .  .  .       5,  23,  568 

v.  Wingfield,  1  Str.  555        .  .  .  .  .  .       60,  86 

and  another  v.  Batchellor,  3  Bos.  &  Pull.  150  .  .  .  83,  418 

Cooke  v.  Brogden  &  Co.,  1  Times  L.  R.  497      ....     294,  584 

■  v.  Cox,  3  M.  &  8.  110   .  .  .  .  .  •  •     528 

v.  Hughes,  R.  &  M.  112     .  .  .  20,  98,  317,  441,  562,  604 

and  another  b.  Wildes,   5  El.   &  Bl.  328  ;   24  L.  J.  Q.  B.  367;  1 

Jur.  N.  S.  610  ;  3  C.  L.  R.  1090      .  .  .  .        232,  272,  285 

Coombs  v.  Rose,  8  Blackford  (Indiana),  155    .....     243 
Cooper  e.  Blackmore  and  others,  2  Times  L.  R.  746  .  .        276,  547 

v.  Greeley,  1  Denio  (N.  Y.),  347  .  .  .  .       .      21 

r.  Hawkeswell,  2  Mod.  58       .  .  .  .  .  -126 

Lawson,  1  P.  &  D.  15  ;  8  A.   &  E.  746  ;    1  W.  W.   &  H.   601  ;    2 

Jur.  919 39,  171,  253,  260 

B.  Smith,  Cro.  Jac.  423  ;  1  Roll.  Abr.  77       .  .  .  .121 

■    r.  Stone,  24  Wend.  484  .  .  .  .  .       .       49 

Corcoran  and  wife  v.  Corcoran,  7  Ir.  C.  L.  R.  272  .  .  .     300 

Cornwall  v.  Richardson,  R,  &  M.  305     .  .  .  .      •      •    810,  569 

Cory  v.  Bond,  2  F.  &  F.  241  .  .  .  .  .  •  -28 

Cosgrave  v.  Trade  Auxiliary  Co.,  Ir  R.  8  C.  L.  349    .  .  .    253,  537 

Cotes  v.  Ketle,  Cro.  Jac.  204  .....  69,  82 

Counsel  v.  Garvie,  Ir.  R.  5  C.  L.  74  .  .  .  •       •     527 

Cowan  v.  Milhourn,  L.  R.  2  Ex.  230  ;  36  L.  J.  Ex.  124  ;    15  W.   R.   750  ; 

16  L   T   290 8,  443,  455,  456,  464,  698 

Coward  v.  Wellington,  7  C.  &  P.  531  .  .  234,  299,  399 

(29) 


xxx  TABLE  OF  CASES. 

(The  paging  refers  to  the  [*]  pages.)  [*  xxx.] 

Cow    Dav.  i'agb 

Cowles  v.  Potts,  84  L.  J.  Q.  B.  247;  11  Jur.  N.  S.  946  ■    13  W.   R.   858  ; 

30  J.  P.  804  .    '  207,236 

Cox  d.  Cooper,  12  W.  R.  75  ;  9  L.  T.  329   ....      23,  LOO,  112 

—  v.  Feeney,  4  F.  &  P.  13      .  .  .  .  .  .        .  -11,  47 

—  «.  Humphrey,  Cro.  Eliz.  889     ......    61,96 

—  r.  Lee,  L.  R.  4  Ex.  284  ;  38  L.  J.  Ex.  219  .  .      .  21,  22,  94,  578 
Coxhead  v.  Richards  (1846),  2  C.  B.  569  ;    15  L.  J.  C.   P.  278;    10  Jur. 

984.         ......         27,  205,  214,  215,  21G,  218 

Crauden  v.  Walden,  3  Lev.  17  .  .  .  .  .  .    "74 

Craven  r.  Smith,  L.  R.  4  Ex.  14G  ;  38  L.  J.   Ex.   90;    17  W.   R.   710;  20 

L.  T.  400       .  .  .  .  .  .  •  •     365,  368 

Crawfoot  t.  Dale,  1  Ventr.  263 ;  3  Salk.  327  .  .  .  .81 

Crawford  r.  Middleton  (1662),  1  Lev.  82  ...  .     164,  270 

Crawford's  Case,  13  Q.  B.  613  ;  18  L.  J.  Q.  B.  225  ;  13  Jur.  955        .     492,  503 
Creen  r.  Wright,  2  C.  P.   D.   354;  40  L.  J.  C.  P.  427;    25  W.  R.  502  ; 

36  L.  T.  355         . 372,584 

Creevy  v.  Carr,  7  C.  &  P.  64        .  .     '       .  .     160,  314,  310,  522,  577 

Creighton  v.  Finlay,  Arm.  Mac.  &  Ogle  (Ir.),  385     ....     314 

Crisp  v.  Gill,  29  L.  T.  Old  S.  82  .  .  .  .81,  82,  231,  240 

Cristie  v.  Cowell,  Peake,  4      .  .  .  .  .  .  .108 

Critchley  v.  Brown.  2  Times  L.  R.  238    .  .  .  .  .       .     527 

Croford  v.  Blisse,  2  Buls.  150  ......     127 

Croft  v.  Day,  7  Beav.  84   .  .  .  .  .  .  .  352,  353 

„.  Stevens,  7  H.  &  N.  570  ;  31  L.  J.  Exch.  143  ;    10  W.   R.  272  ;  5 

L.  T.  683  ;  26  J.  P.  200    .  .  .  .  .  .     240 

Crofts  (Sir  Harbert)  v.  Brown  (1617),  3  Buls.  1G7  .  .  56,  60,  124 

Cromwell's  (Lord)  Case  (1578),  4  Rep.  13       .  .  .  .  .107 

Cropp  v.  Tilnev,  3  Salk.  226  .  .  .  .        13,  19 

Crowe,  Be  (1848),  3  Cox,  C.  C.  123  .  .  .  .     483,  530,  593 

Cueks  v.  Starre,  Cro.  Car.  285  ......       74 

Cuddington  v.  Wilkins,  Hobart,  67,  81  ;  2  Hawk.  P.  C.  c  37,  s.  48         59,  545 
Curl's  Case,  2  Str.  789  ;  1  Barnard.  29  .  .  .      449,  454,  471 

Curry  v.  Walter,  1  B.  &  P.  525  ;  1  Esp.  456  .  .  .  .249 

Curtis  v.  Curtis,  3  M.  &  Scott,  819  ;  4  M.  &  Scott,  337  ;  10  Eing.  477  55 

v.  Mussey,  G  Gray  (72  Mass.),  261  ....     44,  413 

Cutler  v.  Cutler,  10  J.  P.  169 122,130 

v.  Dixon,  4  Rep.  14  .  .  .  .  .  .       .     191 


Da  Costa  v.  De  Pas,  Ambler,  228  ;  2  Swan,  478,  n  .  .  .462 

Dacy  v.  Clinch  (1661),  Sid.  53  .  .  .  .  60,  63,  119 

Daines  and  another  v.  Hartley,  3  Ex.    200  ;  18   L.    J.    Ex.    81;    12   Jur. 

1093  ........     HO,  111,  5G6 

Dale,  Ex  parte,  2  C  L.  R.  870     .  .  .  .  .  .       .     429 

Ex  parte,  48  L.  T.  534  ......     512 

v.  Harris,  13  Browne  (109  Mass.),  193         .  .  ...     223 

Dalrymple  v.  Leslie,  8  Q.  B.  D.  5  ;  51  L.   J.   Q.  B.  61  ;  SO  W.   R.    105  ; 

45  L.  T.  478 549,  550 

Dancaster  v.  Hewson,  2  Man.  &  Ry.  17G        .  .  .  .     .   193,  565 

Darby  v.  Ouseley,  1  II.  &  N.   1  ;    25  L.  J.    Ex.  £27  ;    2  Jur.  N.   S.  497 

98,  277,  311,  317,  573,  575,  579 
Darlev  Main  Colliery  Co.  r.  Mitchell,  11  App.  Cas.  227  ;  55  L.  J.   Q.  B. 

529  ;  54  L.  T.  882.  ...  296,  30G,  521 

Davey  v.  Pemberton,  11  C.  B.  N.  S.  628  ;  8  Jur.  N.  S.  891  .         369,  554 

Davidson  v.  Gray,  Barrow  &  Co.,  5  Ex.  D.  189,  n.  ;  40  L.  T.  192  ;  (C.  A.) 

42  L.  T.  834 369,  371 

Davies  v.  Jenkins,  6  Ch.  D.  728  ;  46  L.  J.  Ch.  7G1  ;  26  YvT.  R.  260   .    ^01 

v.  Snead,  L.  R.  5  Q.  B.  608  ;  39  L.  J.  Q.  B.  202  ;  23  L.  T.  609  ; 

34  J.  P.  693 213,  220 

(T) 


TABLE  OF  GASES.  xxxi 

(The  paging  refers  to  the  [*]  pages.)  [*sxxi.] 

Dav— Die  page 

Davies  and  others  r.  Felix  and  others,  (C.  A.)  4  Ex.  D.  32  ;  48  L.  J.  Ex. 

3  ;  27  W.  R.  108  ;  39  L.  T.  322        .  .  .  .      .     581 

and  wife  o   Solomon,  L.  11.  7  Q.  B.  112;  41   L.   J.   Q.  B.   10  ;   20 

W.  U.  167  ;  25  L.  T.  799  ;  36  J.  P.  454  .       K7,  300,  305,  335 

Davis  v.  Cutbush  and  others,  1  F.  &  F.  487  .  .  .  246,  289,  314,  319 

r    Davis   13  Ch.  D.  861  ;  48  L.  J.  Ch.  40;  28  W.  R.  345  .      .     578 

v   Duncan,  L.  R,  9  C.  P.  396  ;  43  L.  J.  C.  P.  185  ;  22  W.  R.  575  ; 

80  L.  T.  464  ;  38  J.  P.  728  ....    43,  52,  514 

v   Gardiner,  4  Rep.  16  ;  2  Salk.  694;  1  Roll.  Abr.  38  (Anne  Davis's 

Case) 59,  200,  328 

v.  Gray,  30  L.  T.  418 547 

v.  Lewis  (1796).  7  T.  R.  17      .  .  .  67,  80.  127,  164,  L66 

v.  Miller  et  ux.,  2  Str.  1169  ....  62,  82,  84 

r.  Reeves,  5  Ir.  C.  L.  R,  79    .  .  .  .  .  ■     211 

&  Sons  i.  Shepstone,  11  App.  Cas.  187  ;  55  L.  J.  P.  C.  51  ;  34  W. 

R   722  •  55  L   T.  1  ;  50  J.  P.  7U9  ;  2  Times  L.  R.  380      36,  38,  293, 

295,  583 
Davis's  Case,  Anne,  4  Rsp.  16 ;  2  Salk.  G91  ;  1  Roll.  Abr.  33  .  59,  299,  328 

Davison,  Ex  parte',  42  J.  P.  727        .  .  .  .  •  -431 

o.  Duncan,  7  El  &  Bl.  229  ;    26  L.  J.  Q.   B.    104  ;    3  Jur.   N.   S. 

613  •  5  W.  R.  253  ;  28  L.  T.  Old  265  166,  176,  186,  242,  265,  267,  268 

383 
Daw  r.  Elev,  L.  R.  7  Eq.  49  ;  33  L.  J.  Ch.  113  ;  17  T7.  R.  2-15     .  44,  333,  494, 

497 
Dawes  >•.  Bolton  or  Bou<?hton,  Cro.  Eliz.  888;  1  Roll.  Abr.  08  .      .       61 

Daw  kins  i:  Paulet  (Lord),  L.  R.  5.  Q.  B.  94  ;    39  L.  J.  Q.  B.  53  ;    18  W. 

R.  336  ;  21  L.  T.  584  ;  34  .1.  P.  229         .       194,  105,  200,  544,  644 

v.  Rokeby  (Lord*.  L.  R.  8  Q.  B.  255  ;   42  L.  J.    Q.   B.   63  ;    21 

TV.  R,  544  ;  4  F.  &  F.  806  ;  28  L.  T.  134  ;  40  J.  P.  20  ;  (H.  L.) 
L.  R.  7  H.  D.  744  ;  45  L.  J.  Q.  B.  8  ;  23  W.  R.  931  ;  33  L.  T. 
196  ....  193,  194,  195,  196,  563 

Day  r.  Bream,  2  M.  &  Rob.' 54  ....     154,  161,  411,  433,  574 
__  o.  Brownrigg,  10  Ch.  D.  307  ;    4S  L.  J.   Ch.    173  ;    27  W.   R.  217  ; 

39  L.  f;^226,  553  ......       •     359 

v.  Buller,  3  TVils.  59 70,  76 

D.  Robinson,  1  A.  &  E.  534  ;  4  X.  £  M.  884         .  .  .     103,  108 

Dean's  Case,  Cro.  Eliz.  6^9     .  .  .  .  '  .  .  .509 

Deane  v.  Eton,  1  Buls.  201  .  .  .  .  .  .      .       56 

De  Bensaude  v.  The  Conservative  Newspaper  Co.,  3  Times  L.  R,  53S  314 

De  Crespigny  c.  Wellesley,  5  Bing.  392  ;  2  M.  &  P.  695  ;    .       18,  158,  164,  175 

267,  311,  334 
Defries  v.  Davis,  7  C.  &  P.  112  ;  3  Dowl.  629    ....   277,  405 

Delacroix  v.  Thevenot,  2  Stark.  63     .  .  .  .  •  .152 

Delany  v.  Jones,  4  Esp.  191         ....  55,  230,  247,  287 

Delegal  v.  Highley,   5   Scott,  154  ;    3  Bino;.   X.  C.   950  ;    8  C.  &  P.  444  ; 

3  Hodges,  153 189,  280,  307 

Dengate  and  wife  v.  Gardiner,  4  M.  &.  TV.  5  .  2  Jur.  470         .  15,  336,  398 

Deny  v.  Handley,  16  L.  T.  263 168,  334 

Desifla  v.  Schunck  &  Co.  and  Fels  &  Co.,  TV.  X.  1880,  p.  96         .  .     523 

Detroit  v.  McAr  hur,  16  Mich.  447  .  .  .  .      .     311 

Deverill  >\  Hulbert  (not  reported),  Jan.  25th,  1878  .  .  .  .107 

Dexter  v.  Spear,  4  Mason,  115      .  .  .  .  .  •      •     435 

Dihdin  v.  Swan  and  Bostock,  1  Esp.  28         .....  50 

Dicas  v.  Brougham  (Lord),  6  C.  &.  P.  249  ;  1  M.  &.  R.  309     .  .      .     188 

v.  Lawson,  cited  5  Tyrw.  766  ;  2  C.  M.  <k  R.  156       .  .  .256 

Dickeson  v.  Hilliard   and   another,    L.    R.  9   Ex.    76  ;    43  L.  J.  Ex.  37  ; 

22  TV.  R.  372  ;  3  >  L.  T.  196  .  .  .  .37,  213,  242 

Dickinson  v.  Barber,  9  Tyne.  (Mass.)  218,  225  .  .  .  5,  406 

Dicks  v.  Brooks,  13  Ch.  D.  652  ;  28  W.  R.  525  ;    40  L.   T.  710  ;    (C.   A.) 

15  Ch.  D.  22  ;  49  L.  J.  Ch.  812  ;  29  W.  R.  87  ;  43  L.  T.  71     .        146, 

149,  343,  360,  367 

o.  Yates,  (C.  A.)  18  Ch.  D.  76  ;  50  L.  J.  Ch.  809  ;  44  L.  T.  660   .  367 

(31) 


TABLE  OF  CASKS. 


(The  paging  refers  (o  the  [*]  pages.) 

Die    Dun. 

Dickson  v.  Combermere  and  others)  3  F.  &  F.  527 

v.  Wilton  (The  Karl  of),  1  F.  &  F.  419 

Digby  v.  Thompson  and  another,  1  N.  &  M.  485  ;  4  B.  £ 
Dill  v.  Murphy  and  another,  1  Moore  P.  ('.  ('.  X.  S.  487 
Dinsdale  v.  Goodlace,  40  J.  P.  792    . 
Dixon  /■.  Bell,  5  Maule  <&  8.  198  . 

v.  Enocl),  L.  R  13  Eq.  394;  41  L.  J.  Ch.  231 

J;.  T.  127 

v.    Holden,    L 

J.  P.  612 
v.  Parsons,  1  F.  &  F.  24 

v.  Smith,  5  H.  &  N.  450  ;  29  L.  J.  Ex 


[*  x.xxii] 


19G,  242 


&  Ad.  821 


2 J  W.   R.    359;    2G 


196 

275 
23 

491 

532 
405 


R.  7   Eq.  488  ;    17 


W.  R.  482  ; 
.     17. 


33 


20  L.  T. 

344,  354,  355,  357,  358 

.     202 

78,  1GS,  220,  302,  304, 

305,  332,  333,  570 

.    315,  543 

.       80 

68,  73,  83 

.       72 


279 


Dobede  v.  Fisher,  Times,  July  29th,  1880 

Dobson  v.  Thornistone,  8  Mod.  112  . 

Dod  /•.  Robinson  (1648),  Aleyn,  62 

Dodds  v.  Henry,  9  Mass.  262 

Dodson  v.  Owen,  2  Times  L.  R.  Ill 

Doe  d.  Devine,  v.  Wilson,  10  Moo.  P.  C.  502,  530 

Mudd  v.  Suckermore,  5  A.  &  E.  703      . 

Dole  v.  Lyon,  10  Johns.  (N.  Y.)  447 

Dolloway  v.  Turrell,  26  Wend.  (N.  Y.)  3S3 

Donne's  Case,  Cro.  Eliz.  63 

Donoghue®.  Hayes  (1831),  Hayes  (Irish  Ex.)  265 

Dorchester  (Marquess  of)  v.  Proby,  1  Levinz,  148 

Doss  v.  Secretary  of  State  for  India  in  Council,  L.  R.   19  Eq.  509  ;    21 

W.  R.  733;  32  L.  T.  294      . 
Dovaston  v.  Payne,  2  Sm.  L.  C.  8th  Ed.  p.  142        . 
Doveton,  Ex  parte,  26  L.  T.  (O.  S.)  73  ;    7  Cox  C.  C.  16  ;  19  J.  P.  741 

bowling  v.  Browne  (1854),  4  Ir.  C.  L.  R.  265     .  .  .  .      , 

Downie  v.  Arrindell,  Be,  3  Moore,  P.  C.  C.  414       .  .  .  , 

Doyle  «.  O'Doherty,  Car.  &.  M.  418       ..... 
—  and  others  v.  Falconer,  L.  R.  1  P.  C.  328;  $5  L.  J.  P.   C.   37; 
W.  R.  366  .  .  .  . 

Doyley  v.  Roherts,   3   Biug.    N.    C.  835  ;  5   Scott,  40  ;  3  Hodges,  154 


311 
.  560 
.  560 
.  165 
.  73 
.  54 
93,  108 
.  137 
!3 

.  196 
.  85 
428, 
429 
406 
504 
192 


15 


Drake,  Ex  parte,  In  re  Ware,  5  Ch.  D.  860  ;  46  L.  J.  Ch.  105  ;  25  W 
641  ;  36  L.  T.  677  ....  . 

v.  Drake  (1652),  1  Vin.  Abr.  463  ;  1  Roll.  Abr.  58 

v.  Hill,  .Sir  T.  Raym.  184  ;  2  Keb.  549  ;  1  Lev.  276;  Sid.  424 

Draycott  or  Darracott  v.  Harrison,  17  Q.  B.  D.  147  ;  34  W.  R.  546 
Driffield  Arc.  Co.  v.  Waterloo,  &c.  Co.,  31  Ch.  D.  638  ;  55  L.  J.   Ch.  391  ; 

34  W.  R.  360  :  54  L.  T.  210 147 

Drummond  v.  Leslie,  5  Blackf.  (Indiana)  453   ..... 

Du  Barre  v.  Livette,  Peake,  76  .... 

Du  Bost  v.  Beresford,  2  Camp.  511 

Dudley,  Be.  (C.  A.)  12  Q.  B.  D.  44  ;  53  L*  J.  Q.  B. 

49  L.  T.  737  ..... 

Dun;dale  v.  Regina,  1  E.  &  B.  425  ;  22  L.  J.  M.  C. 

l7Jur.  546  .... 

Duncan  r.  Thwaites,  3  B.  &  C.  556  ;  5D.  A-  R.  447 
Duncomhe  r.  Daniell,   8  C.  &  P.  222;    2  Jur.   32  ; 

cited  7  Dowl.  472  .... 
Dunman  v.  Bis;^,  1  Camp.  269,  n. 
Dunn  p.  Hall,  1  Carter,  345  (Indiana)  1  Smith,  288  . 
Dunne  v.  Anderson,  3  Bing.  88  ;  10  Moore,  407  :  R. 
Duplany  v.  Davis,  3  Times  L   R.  184 
Dwyer  v.  Esmonde,  2  L.  R.  Ir.  243  ;    Ir.  R.  11  C.  L 
v.  Meehan,  18  L.  R.  Ir.  138 


.     491 

09,  77 

296,  568 

R. 

.     498 

.  73,  74- 

81 

405 


351 

.       63 

.     208 

I  20,  22,  352,  353,  568 

;  32    W.    R.   264; 

499 
Dears.   C.C.   64; 

.     472 
.     249.  250.  252,  255,  539 
1    W.  W.  A  II.  101  ; 

43,241,246,314 

239 

.'     413 

&  M.  2S7  .       .       43 

38,  50 

542,  below       .       52,  233 

86,  301 


6, 
16; 

-,0 


<m 


TABLE  OF  CASES.  xxxiii 

(The  paging  refers  to  the  [*]  pages.),  L*xxxiii.] 

Ea— Fau.  PA«E 
Evde  and  another  v.  Jacobs  (C.  A.),  3  Ex.  D.  335;  47  L.  J.  Ex.  74  ; 

26  W.  R.  159  ;  37  L.  T.  021                    .            .            .            .            .  548 
Eager   In   re,  Eager  v.  Johnstone  (C.  A.),  22  Ch.  I).  86  ;  52  L.  J.  Ch..50  ; 

31  AV.  It.   33  ;  47  L.  T.  685 519 

Eagleton  v.  Kingston,  8  ATes.  473            .            .            .            .            .  560 

East  v.  Chapman.  M.  &  M.  46  ;  2  C.  &  P.  570           .             .             .         314,  319 
Eastmead  ».  Witt,   IS  C.  B.  544  ;  25  L.  J.  C.  P.  294  ;  2  Jur.  N.  S.  1004 

204,  231,  289 

Eastwood  v.  Holmes,  1  F.  &  F.  347        .            .            .            .        51,  128,  567 

Eaton  ats (1813),  cited  2  Ves.  &  B.  23            .            .            .            .  347 

v.  Allen  (1599),  4  Rep.  16  ;  Cro.  Eliz.  684              ...     60,  124 

v.  Johns,  1  Dowl.  (N.  S.)  602                 .....  20 

Eden  v.  Legare,  1  Bay,  171         .....            .  61 

Edmonds  v.  Walter  and  another,  3  Stark.  7  570 

Edsall  v.  Brooks,  2  Robt.  29  ;  3  Robt.  284  (New  York)             .             .  105 

v.  Russell,  4  M.  A  G.  1090  ;  5  Scott,  N.  R.  801  ;  12  L.  J.  C.  P.  4  ; 

2  Dowl.  (N.  S.)  641  ;  6  Jur.  996       .             .             .        55,  71,  77,  174,  627 
Edward  v.  Lowther,  45  L.  J.  C.  P.  417  ;  24  AV.  It.  434  ;  34  L.  T.  255 

517,  544,  553 

Edwards  v.  Bell  and  others,  1  Bing.  403      ...              26,  171,  174 

v.  Loudon  &  N  A\\  Ry.  Co.,  L.  R.  5  C.  P.  449          .            .  412 

Elborow  v.  Allen,  Cro.  Jac.  643         .....  140 

Ellershaw  v.  Robinson  et  u.r.  (1824),  2  Starkie  on  Libel,  2nd  ed.,   p.  90  321 

Elliot  v.  Halmaraek,  1  Mer.  303        ......  495 

Ellissen,  Ex  parte,  cited  5  Q.  B.  D.,  at  p.  13     .             .             .             .  591 

Emblem  v.  Myers,  6  H.  &  N.  54  ;  30  L.  J.  Ex.  71  .            .            .            .  295 

Emmens  v.  Pottle  and  Son  (C.  A.),  16  Q.  B.  D.  354  ;  55  L.  J.  Q.  B.  51  ; 
34  AV.   It.   116  ;  53  L.  T.  808  ;  50  J.   P.  228  ;  2  Times  J,.  It.  115  ;  1 

C.  &  E.  553                 .             .             .             .             .             .        162,  433,  638 

Emond's  Case,  Dec.  7,  1829  ;  Shaw.  229        .            .            .            .            .  339 

Emperor  (The)  of  Austria  v.  Day  and  Kossuth,   3  De  G.  F.  &  J.  217  ; 

30  L.  J.  Ch.  690  ;  7  Jur.  N.  S.  639         ....        352,  358 

Empson  v.  Fairfax  and  another,  8  A.  &  E.  296  ;  3N.&P.  385            .  369 

England  v.  Bourke,  3  Esp.  80            ......  576 

Entick  v.  Carrington,  11  Hargrave's  St.  Tr.  317  ;  19  How.  St.   Tr.   1029 

153,  593 

Etty  v.  Wilson  (C.  A.)  3  Ex.  D.  359  ;  47  L.  J.  Ex.  0">1  ;  39  L.  T.  83         .  581 
Evans  v.  Chamberlain  of  London  (The),  16  Pari.  History,  325  ;  2  Burn. 

Eccl.  Law,  218       .            .            .            .            .            .        443,  460- 

r.  Gwvn,  5  Q.  B.  844            .             .             .             .             .             .      .  74 

v.  Harlow,  5  Q.  B.   624  ;    13  L.  J.   Q.   B.    120  ;    D.   &  M.    507  ;  8 

Jur.  571      .             .             .             .             .             30,  31,  81,  148,  149 

v.  Harries,  1  H.  &  N.  251  ;  26  L.  J.  Ex.  31           294,  304,  305,  308,  309, 

332  532 

v.  Rees,  9  C.  B.  N.  S.  391  ;  30  L.  J.  C.  P.  16              .            .            . '  366 

v.  AValton,  L.  R.  2  C.  P.  615  ;  15  AV.  R.  1062       .            .            .       .  406 

Evening  News,  lie.  3  Times  L.  It.  255           ....         254,  429 

v.  Tryon,  36  Amer.  R.  450  ;  42  Mich.  549                       .       .  323 

Eyre  v.  Garlick,  42  J.  P.  68  .  .  .  .  .  .6,  13 


Fairman  v.  Ives,  1  D.  &  R.  252  ;  5  B.  &  Aid.  642  ;  1  Chit.    85     .  .    169, 

.       226,  227,  228,  250 
Falkland  (Lord)  v.  Phipps,  2  Comyns,  450  ;  1  Via  Abr.  549  .  .     137 

Falkner  v.  Cooper  (1678),  Carter,  55  .  .  .  .       .     131 

Falvey  v.  Stanford,  L.   R.  10  Q.   B.   54  ;  44  L.   J.   Q.    B.    7  ;  23   W.  R. 

162  ;  31  L.  T.  677  ;  39  J.  P.  134 296,  584 

Farley's  (Mrs.)  Case  (Cann  v.  Cann),  2  Yes.  Sen.  520  ;  3  Hare,  333  n.         .     496 
Farrow  v.  Hague,  3  H.  &  C.  101  ;  33  L.  J.  Ex.  258      .  .  .      .     588 

Faund  v.  AArallace,  35  L.  T.  361  .,  .  .  .  .     581 

(33) 


xxxiv  TABLE  OF  CASKS. 

[*  xxxiv]  (The  paging  refers  to  the  [*]  pages.) 

Fel-Fra.  1>A01! 

Felkin  v.  Herbert,  33  L.  J.  Ch.  204  ;  12  W.  R.  341,  332  ;  9  L.  T.  635  ; 

10  Jur.  N.  S.  62  .  .  .  .  .  .  .     46,  497 

Fellowes.  v.  Hunter,  20  Up.  Can.  Q.  B.  382  ....  09,  82 

Foils.  In  re,    Ex  parte  Andrews,  4  Ch   I).  509  ;  46  L.  J.    Bkcy.   23  ;  25 

W.  R.  38-2  ;  36  L.  T.  38       .  .  .  .  .  .      .     498 

Fenn  v.  Dixe  (1638),  1  Roll.  Abr.  58  .  .  .  .  .81 

Fenton-  v.  Hampton,  11  Moore,  P.  C.  C.  347      .  .  .  .490,491 

Ferguson  v.  Clayworth  and  wife,  6  Q.   B.  269;    13  L.  J.  Q.   B.  329; 

8  Jur.  709  ;  2  D.  &  L.  165  .....        401,405 

Fernandez,  Ex  parte,  0  H.  &  N.  717  ;  10  C.  B.  N.  S.  3  ;  30  L.  J.  C.  P. 

321  ;  7  Jur.  N.  S.  529,  571  ;  9  W.  R.  832  ;  4  L.  T.  296,  324  .  501,  502 

Field  b.  Bennett,  56  L.  J.  Q.  B.  89  .  .  .  .  .     519 

v.    2  Times  L.  R.  91,  122      .  .  .  .  .      .     550 

v.  Gt.  Northern  Ry.  Co.,  3  Ex.  D.  261  ;  26  W.  R.  817  ;  39  L.  T.  80 

372,  584 
Figgins  v.  Cogswell,  3  M.  &  S.  369  .  .  .  .  80,  83 

Finden  v.  Westlake,  Moo.  &  Mai.  461     .  .  .  .      232,  280,  289 

Finnerty  v.  Tipper,  2  Camp.  72         ....  277,310,318 

Fisher  v.  Atkinson,  1  Roll.  Abr.  43         .....  83 

v.  Clement,  10  B.  <fc  C.  472  ;  5  Man.  &  Ry.  730        .  .  94,  269,  566 

-  v.  Owen  (C.  A.).  8  Ch.  D.  645  ;  47  L.  J.  Ch.  477,  681  ;  26  AY.  I!. 
417,  581  ;  38  L.  T.  252,  577  ;  42  J.  P.  136    .  .  .      549,  550,   555 

Fisher  &  Co.  ».  Appollinaris  Co.,  L.  R.  10  Ch.  App.  297  ;  44  L.  J.  Ch. 

500  ;  23  W.  R.  460  ;  32  L.  T.  628  ....  345,  359 

Filter  v.  Veal,  12  Mod.  542  ;  B.  N.  P.  7  .  .  .       295,  306,  579 

Fitzgerald  ,v.  Campbell,  IS  Ir.  Jur.  153  ;  15  L.  T.  74  .  .  282,  537 

Fitzgibbon  v.  Greer,  Ir.  R.  9  C.  L.  294  .  .  .  .  .      .     548 

Fleetwood,  Sir  Miles  v.  Curl  or  Curley  (1019),  Cro.  Jac.  557  ;  Hob.  268 

72.  93,  109,  132 
Fleming  and  others  r.  Newton  (1848),  1  II.  L.  C.  CC3  ;  6  Bell's  App.  175 

253,  3:39,  344,  353,  358,  361 
Flint  r.  Pike,  6  P.  &  R.  528  ;  4  B.  &  C.  473  .  .       176,  190,  257,  261 

Flowers'  Case.  Cro.  Car.  211         .  .  .  .  .  .       .       71 

Floyd  b.  Barker,  12  Rep.  24 187,  188 

Fonville  v.  Nease,  Dudley  8.  C.  303  (American)  .  .         152,  154,236 

Foot  v.  Brown,  8  Johns.  *64  ......        76 

Forbes  v.  King,  2  L.  J.  Ex.  109  ;  1  Dowl.  672  .  .  .23,  114 

Force  v.  Warren,  15  C.  B.  X.  S.  806  .  .  .  .  .     235 

Ford  v.  Primrose,  5  I).  &  R.  287  ......       55 

Fores  v.  Johnes,  4  Esp.  97    .  .  .  .  .  .  -7 

Forrester  v.  Waller,  cited  4  Burr.  2331  ;  2  Brown,  P.  C.   129  ;  2  Swan. 

426  n.  .  .  ,  .  .  •  .  .       .    T547 

Forsdike  and  wife  v.  Stone,  L.  R.  3  C.  P.  607  ;  37  L.  J.  C.  P.  301  ;  16 

W.  R.  976  ;,  18  L.  T.  722  .....  296,584 

Foster  v.  Browning  (1625),  Cro.  Jac.  688  ....     55,119 

Be  v.  Gt.  Western  Ry.  Co.,  8  Q.  B.  D.  521  ;  30  W.  R.  398  .     367 

v.  Pointer,  9  C.  &  P.  718         .  .  .  .  .  .564 

v.  Seripps,  39  Mich.  376  ;  33  Amor.  R.  403  .  .  .       .       77 

-  and  others  >-.  Lawson,  11  Moore,  360  ;  3  Bing.  412  .  83,  419 
Foulger  v.  Newcomb,   L.   R.   2  Ex.   327;  36  L.  J.  Ex.   169;  15  W.  R. 

il81  ;  16  L.  T.  595  ;  31  J.  P.  503  .  .        23,  69,  79,  115,  120,  531 

Fountain  v.  Boodle  et  ux.,  3  Q.  B.  5  ;  2  G.  &  D.  455     .  2  7s.  279,  310,  570 

v.   Rogers  (1601),   Cro.  Eliz.  878        .  .  .  .■  .121 

Fowell  v.  Cowe;  Roll.  Abr.  56  .  .  .  .  .     .      72 

Fowler  v  Aston,  Cro,  Eliz.  268  ;  1  Roll.  Abr.  43      .  .  .     121 

Fowler  v.  Dowdney,  2  M.  &  Rob.  119  .  .  .  .  .59 

and  wife  /-.'Homer,  3  Cam]).   294  .  .  212,  222,  223,  281 

Fowles  v.  Bowen,  3  Tiffany  (30  N.  Y.  R.),  20  .         203,  273,  274,  277,  334 

Fox  v.  Broderiek.  14  Ir.  C.  L.  Rep.  453         .....     155 
Foxcroft  v.  Lacey,  Hobart,  89  ;  1  Roll.  Abr.  75  .  .  .      .     132 

Francis  r.  Boose',  3  M.  &  W.  191  ;  1  II.  &  II.  36     .  .  .  55,  105 

Franklyn  v.  Butler,  Pasch.  11  Car.  I.,  cited  Carter,  214  .      .     115 

(34) 


TABLE  OF  CASKS. 


34  L.    J.    C.  P.  4o 


(The  paging  refers  to  the  [*]  pages.) 

Fra— God.  „    „  „    „„„ 
Fraser  v.  Berkeley.  7  C.  &  P.  621      . 
Fray  v.  Blackburn,  3  B.  &  S.  576 
r.  Fray,  IT  C.  B.  N.    S.  603 

1153 

Freetky  v.  Freethy;  42  Barb.  N.  York,  641 

Frescoe  v.  May,  2  F.  &  F.  123 

Freston,  Re  ((''.  A.),  11  q.  B.  13.  545  ;  52  L.  J.  Q.  B.  545 

804  :  49  L.  T.  290 
Fi-y  »■  Came  (1724),  8  Mod.  283    . 

Fryer  u.  Gatheroole,  4  Exch.  262  ;  18  L.  J.  Ex.  389  ;  13  Jur.  542 
— -  v.  Kinnersley,  15  0.  B.  N.   S.   422  ;    33'L.   J.   C.  P.  96  ;    10 

N.  S.  441  ;  12  \Y.  R.  155  ;  9  L.  T.  415 
Fuller  v.  Fenner,  16  Barb.  333     . 
Fyfe  v.  Gray,  73  Law  Times  (Newspaper),  309 


[*  xxxv] 
PAGE 

48,  319 
.      .     188 
L0  Jur.  N.  S. 

.     21,  94,  572 
.      .     398 
316,  522,  577 
31  W.  R.  581, 

.     499 

.     56,  121 

.     562 

Jur. 

202,  245,  2S4 

.      .     302 

146,  350 


Gaikfokd  r.  Tuke  (1620),  Cro.  Jac.  5 
Gale  v.  Leekie,  2  Stark.   107   . 
Gullwey  r  Marshall,  9  Ex.  294  ;  23  L. 

Gardiner--.  At  water  (1756),  Saver,  265 

v.  Williams,  2  C.  31.  &  R.  78 

578 
Gardner 


59,  127 


J.  Ex.  73  ;  2  C.  L.  E.  399 


1  M.  &  W.   245  ;  1 


6^.  7:5, 
75,  85, 
.   127, 
Tyr.  &  Gr. 


Q.  B.  334  ;  13  Jur. 


545 


W. 


Slade  et  ux.,  13  Q.  B.  796  ;  18  L.  J 
13  J.  P.  490  ... 

Garnett  c  Bradley  (C.  A.),  2  Ex.  D.   349  ;    46  L.  J.  Ex 
653;  39  L.  T.  725;  43  J.  P.  20       . 
(H.  L.),  3  App.  ('as.   944  ;  48  L.   J.  Ex.  186  ;  26  W 
698  ;  39  L.  T.  261 

v.  Ferrand,  6  B.  &  C.  611 

Garr  v.  Selden,  6  Barb.  (N.  Y.),  41G  ;  4  Comst.  HI. 

Garrels  a.  Alexander,  4.  Esp.  37 

(Janet  v.  Taylor,  Cro.  Jac.  567;  1  Roll.  Abr.  108 

Garrow's  Case,  Sir.  W.,  3  Chit.  Crim.  L.  884    . 

Gascoigne  et  ux.  v.  Ambler,  2  Lord  Raym.  1004 

Gaskin  v.  Balls,  13  Ch.  D.  324  ;  28  W.  R.  552   . 

Gassett  t>.  Gilbert  and  others,  6  Gray  (72  Mass.),  94 

Gates  >\  Meredith,  7  Ind.  440 

Gath  v.  Howarth,  W.  N.  1884,  p.  99  ;  Bitt.  Ch.  (as. 

Gathercole  v.  Miall,  15  M.  &  W.  319  ;  15  L.   J.   Ex 

10  J.  P.  582     ..... 
Gay  v.  Labouchere,  4  Q.  B.  D.  206  ;    48  L.  J.  Q.  B. 


826; 

202, 


79 
179 


it. 
336, 
R. 
366, 


220,  230,  240, 

.  368, 
10  Jur.  337; 
26,  48,  49,  289,  311, 
279  ;    27  W.  R.  412 


Geary  ».  Physic,  5  B.  et  C.  238    . 

Gee  v.  Pritchard  and  another  (1818),  2  Swan.  402     . 

Geisler  v.  Brown,  6  Neb.  254       ..... 

Gelen  v.  Hall,  2  H.  &  N.  379  .... 

General  Baptist  Churches  v.  Taylor,  3  Dunlop  &  Bell,  2nd  series 

George  v.  Goddard,  2  F.  &  F.  689  .... 

Gerard  (Sir  G.)  v.  Dickenson  (1590),  4  Rep.  18  ;   Cro.  Eliz.   197 

Getting  r.  Foss,  3  C.  &  P.  160 

Gillett  «.  Bullivant,  7  L.  T.  Old  S.  490  . 

Gilpin  v.  Fowler,  9  Ex.  615  ;  23  L.  J.  Ex.  152  ;  18  Jur.  293     . 


548, 
348,  353, 


1030 


114, 


168, 


Ginnet  r. 

565  ; 

Girand  v. 


55  L.  J.  Q.  B.  409 


30, 

12, 
2; '  1, 
34  W.  R. 


Whittinffham,  16  Q.  B.  D.  761 

2  Times  L.  R.  243   . 

Beach,  3  E.  D.  Smith  (New  York   City  Common  Pleas),  337 


Goddart  v.  Haselfoot,  1  Roll.  Abr.  54 


1  Vin.  Abr.  S.  a. 
(35) 


pi.  12 


74, 
531 
165 

130 

272 

527 

527 
507 

76 
560 
4  0 
431 

86 
360 
247 
406 
526 

563 

549 
6 

358 
305 
188 
462 
241 
273 
213 
334 
275 
562 

520 
132 

77 


xxxvi  TABLE  OF  CASES. 

[*  xxxvi]  (The  paging  refers  to  the  [*]  pages.) 

Gof    Gut  PAGE 

Godfrey  v.  Owen,  Palm.  21  ;  3  Salk.  327      .  .  .  .  .61 

Godsons  Home,  3  Moore,  223  ;   I   Br.  &  B.  7  .  .  .         28,  210,270 

GofflD  B.  Donnelly,  6  Q.  B.  I).  307  ;  00  L.  J.  Q.  B.  C03  ;     29  W.  R.  440  ; 

II  L.  T.  141  ;  45  J.  P.  439 186,195 

Gold  v.  Turner,  L.  R,  10  C.  P.  149  ;  23  W.  R.  7C2       .  .  .      .     518 

Goldstein  v.  Foss,  1    M.  &.  P.  402 ;    6    B.  &    ('.  154  ;    2    Y.  &  J.  L46 ;    9 

1)   &  R.  M  :  4  Pin-.  489;  2  C.  &  1'.  252  ;  Add.  iii.  24.  11-1,  120,  213 

Gompertz  v.  Levy,  9  A.  «fc  E.  282  ;  1  P.  &.  D.  214  ;   1    W.  W.  &   II.  72s  ; 

2  Jur.  1013  "  .  .  .  .  •  •  •  -103 

Goodale  /'.  Castle,  Cro.  Eliz.  554 62,84 

Goodburne  v.  Bowman  and  others,  9  Bing.  532         .  .  .28,  173,  539 

l)w  (as  lo  costs),  9  Bing.  6G7     .  .       .     369 

Gorham  v.  Bishop  of  Exeter  (1850),  Brod.  &  Fremantle,  64  .  .     449 

Goslin  r.  Corry,  7  M..  &  (Jr.  342  ;  8  Scott,  N.  R.  21       .  . .  .  308,  520 

Gossett   v.   Howard.    10  Q.   B.   359,    411  ;    14  L.  J.  Q.  B.  367  ;  16  L,  J. 

Q.  B.  345  ;  11  Jur.  750  ;  Car.  &  M.  380  .  .  .  490,  501 

Gostling  v.  Brooks,  2  F.  &  F.  76  .  .  .  .  .80,115 

Gott  r.  Pulsifer,  122  Mass.  235  .....  49 

Gottbehuet  v.  Hubachek,  36  Wisconsin,  515  .  .  .  69 

Gough  v.  Goldsmith,  44  Wis.  262  ;  28  Amer.  R.  579  ..  .     167 

Gould  v.  Hulme,  3  C.  &  P.  625    .  .  .  .  .  .191,  242 

Gourley  v.  Plimsoll,  L.  R.  8  C.  P.  3C2 ;  42  L.  J.   C.    P.   121  ;   21  W.    R. 

683  ;  28  L.  T.  598 538,  548 

Goutard  v.  Carr  (C.  A.),  13  Q.  B.   D.    598  n.;   53  L.  J.  Q.  B.  55,  407  n.; 

32  W.  R.  242 370 

Govett  v.  Radnidge  and  others,  3  East.  63  .  .  .  .  .  516 
Gower,  Ex  parte,  Lord  R.,  R.  v.  Barnard,  43  J.  P.  127  133,  436,  567,  612 
Grant  v.  Gould  (1792),  2  H.  Bl.  69 195 

v.  Secretary  of  State  for  India,  2  C.  P.   D.   445  ;    25  W.    R.   848  ; 

37  L.  T.  188 196 

v.  Yates  (C.  A.),  2  Times  L.  R.  368  .  .      98,  106,  113,  578,  582 

Graves'  Case,  Cro.  Eli/.  289    .  .  ■  .  .  .  .126 

Gray  v.  West  et  ux.,  L.  R.  4  Q.  B.  175  ;  9  B.  &  S.  196  ;    38  L.  J.   Q.  B. 

78  ;  17  W.  R.  497  ;  20  L.  T.  221  ;  33  J.  P.  342  ..  .     365 

Greaves  v.  Keene,  4  Ex.  P.  73  ;  2  7  W.  R.  416  ;  40  L.  T.  2r<;    .  .      .     503 

Green  v.  Button,  2  C.  M.  &  R.  707    .  .  .  .         15,  92,  145,  328 

v.  Chapman,  4  Bing.  N.  C.  92  ;  5  Scott,  340  .  .      .      50 

v.  Elgie  and  another,  5  Q.  B.  99  .  .  .  .     501 

Greene  v.  N.  Y.  Dealers'  Protective  Association,   39  Hun  (46  New  York 

Supr.  Ct.),  300 364 

Greenfield's  Case  (Sir  R.),  Mar.  82  ;  1  Yin.  Abr.  465  .  .  .82 

Greenwood  v.  Prick,  cited  in  Cro.  Jac.  91  ;  cited  in  1  Camp.  270  5,  243,  270 
Gregory  v.  The  Queen  (No.  1),  15  Q.  B.  957  ;  14  L.  J.  M.  C.  82  ;  15  Jur. 

'    74;  5  Cox,  C.  C.  247     .  .  .     23,593 

,,.        (No.  2.),  5  Cox,  C.  C.  252       .  .  .  .102 

and  another  v.  Williams,  1  C.  &  K.  568  .  .  395,  579 

Greville  ».  Chapman  and  others,  5  Q.  B.  731  ;  13  L.  J.   Q.  B.   172 ;  D.  & 

M.  553;  8  Jur.  189  .,...••      23 

Griffin  v.  Moore,  43  Maryland.  246  .  .  .  .  .      .       57 

Griffiths  v.  Hardenburgh,  41  New  York,  469  .  .  .  .8 

v.  Lewis,  7  Q.  B.  61  ;  14  L.  J.  Q.  B.  197  ;    9  Jur.   370  ;  8  Q.   B. 

841  ;  15  L.  J.  Q.  B.  249;  10  Jur.  711  .  .     81,  114,  235,  237,  515 

Grimes  ».  Lovel,  12  Mod.  242  ......       65 

Grimwade  v.  Dicks  and  others,  2  Times  L.  R.  C27         .  .  .       .     259 

Grissell's  Case,  Aug.  1879       .  .  ....     489 

Groenvelt®.  Burwell,  1  Ld.  Raym.  454;  12  Mod.  388  .  .  .      .     188 

Grove,  et  ux.  V.  Hart  (1752),  Sayer,  33  ;  B.  N.  P.  7  .  .    60,  395,  400 

Guerdon?'.  Winterstud,  Cro.  Eliz.  308    .  .  .  .  56 

Gurney  v.  lLongman  (1807),  13  Ves.  493        .....     340 

Gutsole  r.  Mathers,  1  M.  &  W.  495  ;  2  Gale,  64;    5  Dowl.  60  ;    1    Twyr. 

&  Gr.  694 •         •  143,  528 

(36) 


TABLE   OF  CASES.  xxxvii 

(The  paging  refers  to  the  [*]  pages  )  [*xxsvii.] 

Guy— Har.  page 

Guv  d.  Gregory,  9  C.  &  P.  584    ....  15,  310,  326,  30!),  569 

Gwynn  c.  8.  E.  Rail.  Co.,  18  L.  T.  738     .            .            .  .     174,  257,  576 


Haddon  v.  Lott,  15  C.  B.  411  ;  24  L.  J.  C.  P.  49  .  .     140,  327,  329 

Haire  v.  Wilson,  4  M.  &  R.  605  ;  9  B.  &  C.  6443      .  .        21,  93,  269,  270 

Hake  v.  Molton,  Roll.  Abr.  43  .  .  .  .  .  .126 

Hakewell  v.  Ingram,  2  C.  L.  II.  1397        .  .  .  .     22,  582 

Hall  v.  Hollander,  4  B.  &  G.  660  ;  7  D.  &  R.  133     .  .  .  .     406 

v.  Smith,  1  M.  &  S.  287  .  .  .  .  .  .  80,  83 

v.  Weedon,  8  D.  &  R.  140    .  .  .  .  .  .       .     123 

Hall's  (Arthur)  Case  (1581)      .  .  *    .  .  .  .489 

Hallinan  v.  Price,  27  W.  It.  490  ;  41  L.  T.  627  ...  371 

Halsey  v.  Brotherhood,  15  Ch.  D.  514  ;  49  L.  J.  Ch.    786  ;    30  W.   R.   9; 

43  L.  T.  366  ;  (C.  A.)  19  Ch.  D.  386  ;  51   L.   J.    Ch.   233  ;    30  W.   It. 

279  ;  45  L.  T.  640  .  .  .  .  .  146,  342,  349 

Hamilton  v.  Eno,  81  N.  Y.  116    .  .  .  .  .  .       .       44 

&  Co.  v.  Johnson  &  Co.  (C.  A.)  5  Q.  B.  D.  263  ;    49  L.  J.   Q.  B. 

155  ;  28  W.  R.  879  ;  41  L.  T.  461 580 

Hammersmith  Skating  Rink  Co.  v.  Dublin  Skating  Rink  Co.,  10  Ir.  R. 

Eq.  235 146^349,  359 

Hamon  v.  Falle,  4  App.  Cas.  247  ;  48  L.  J.  P.  C.  45  .  .     27,  68,  231 

Hancocks  i\  Lablache,  3  C.  P.  D.  197 ;  47  L.   J.   C.   P.  514  ;  26  W.  R. 

402 ;  38  L.  T.  753  .  .  .  .  .  .  .     401 

Hand  v.  Winton,  38  N.  Y.  122 73 

v.     9  Vroom,    122  .  .  .  .  .  .73 

Hankinson  e.  Bilby,  17  M.  <fc.  W.  442  ;  2  C.  &  K.  440     .  .        93,  94,  105 

106,  108,  574 
Harding  v.  Greening,  1  Moore,  477  ;  8  Taunt.  42  ;   1  Holt,  N.  P.  531        .     413 
Hard  wick®.  Chandler,  3  Str.  1138     .  .  .  .  .  .76 

Hare  v.  Mellers,  3  Leon.  138         .  .  .  .  .  .       .     193 

Hargrave  v.  Le  Breton,  4  Burr.  2422  .  .  .143,  144,  230,  269 

Harle  v.  Catherall  and  others,  14  L.  T.  801         .  40,  47,  241,  246,  319,  517 

Harman  v.  Delany,  2  Str.  898  ;  1  Barnard.  289,  438 ;  Fitz.  121  .  29,  31 

81,  147 
Harnett  v.  Vise  and  wife  (C.  A.),  5  Ex.  D.  307 ;  29  W.  R.  7        .  319,  367 

Harper  (Sir  J.)  v.  Beamond,  Cro.  Jac.  56      .  .  .  .  .72 

Harris  v.  Davies,  10  App.  Cas.  279  ;  54  L.  J.  P.  C.  15    .  .  .     .     368 

-  v.  Dixon,  Cro.  Jac.  168  .  .  .  .  .  .56 

v.  Petherick  (C,  A.),  4  Q.  B.  D.  611  ;  48  L.  J.  Q.  B.   521  ;    28  W. 

R.  11  ;  41  L.  T.  146  .  .  .  .         387,  369,  584 

v.  Thompson  (1853),  13  C.  B.  333     215,  220.  244,  272,  279,  280,  572 

v.   Warre,  4  C.  P.  D.  125  ;  48  L.  J.  C.  P.  310  ;  27.W.  K.  461 ;  40 

L.  T.  429  ;  43  J.  P.  544 490,  528 

Harrison  v.  Bevington,  8  C.  &  P.  708  .  .  .  .     80,  83,  419 

■      v.  Bush,  5  LI.  &  Bl.  344  ;  25  L.  J.  Q.  B.  25,  99  :  1  Jur.   N.   S. 

846  ;  2  Jur.  N.  S.  90  ;  20  J.  P.  147      .       199,  226,  228,  273,  369 

v.  Fraser,  29  W.  R,  652  .  .  .  .  .       .     225 

v.  King,  4  Price,  46  ;  7  Taunt.  431  ;  1  B.  &.  Aid.  161  .       57,  126 

V.  Pearce,  1  F.  &  F.  567  ;  82  L.  T.  Old  S.  298     .     158,  160,  294,  303, 

307,  316,  322,  327,  413,  522,  577 

v.  Stratton,  4  Esp.  217  .  .  ,  .  .       .     57 

•      v.  Thornborough,  10  Mod.  196  ;  Gilb.   Cas.  in  Law  &  Eq.    114 

56,  80,  97,  125,  131 
Hart  v.  Coy,  40  Ind.  553  .  .  .  .  .  .       .     131 

Hart  v.  Gumpach,  L.  R.  4  P.  C.  439  ;    42  L.  J.  P.  C.  25  ;    21  W.  R,  365  ; 

9  Moore,  P.  C.  C.  N.  S.  241  .  .  .  .       .     194 

and  another  v.  Wall,  2  C.  P.  D.  146  ;    46  L.  J.  C.  P.  227  ;    25  W.  R. 

373  ....  25,  35,  94,  117,  142,  571,  668 

(37) 


xxxviii  TABLE  OF  CASES. 

I  :;  xxxviii.]  (The  paging  refers  to  the  [*]  pages.) 

Har— Hil.  taoe 

Hartley  v.  Herring,  8  T.  It.  130  .  .  74,  299,  300,  305,  308 

a  Hindmarsh,  L.  R.  I  C.  P.  553  ;  35  L.  J.  M.  C.  254  ;    11  W.  R. 

862  ;  13  L.  T.  795  ;  12  Jur.  N.  S.  502 573 

Hartsock  v.  Reddick,  6  Blackf.  (Indiana)  255  ....     193 

Hartwell  v.  Vesey  etux.,  3  L.  T.  275      .  .  .  .  .       .     244 

Harvey  v.  French,   1  Cr.  &  M.  11;   2  M.  cV  Scott,  591;    2  Tyrw.  585 

22,  99,  101,  105 

v.  Harvey,  26 Ch.  1).  644  ;  32  W.  R.  70  ;  51  L.  T.  508  ;  48  J.  P.  468    499 

Harwood  v.  Astley  (Sir  J.),  1  B.  &  P.  N.  R.  47  .  .  .    43,241 

-  v.  Green,  3  C.  &  P.  141      .  :  .  .  .       .     27,  218 

et.ux.v.  Hardwick^.  ux.,  2  Keb.  387  .  .  .335,395 

Hassell  v.  Capcot  (1639),  1  Vin.  Abr.  395  ;  1  Roll.  Air.  36  .  .     60,  86 

Hatchard  v.  Mege  and  others,  18  Q.  B.  D.  771  ;  ,\5  VY.  R.  576  ;   3  Tin*  s 

L.  R.  546  ;  51  J.  P.  277 408 

Haviland,  Ex  parte,  41J.  P.  789  .  .  .  .  .       .    428 

Hawkesley*.  Bradshaw  (C.  A.),  5  Q.  B.   D.  302;  49  L.  J.   Q.  B.  333; 

28  W.  It.  557  ;  42  L.  T.  285  ;  44  J.  P.  473  ...     370,  541 

Hawkings  r.  Billhead,  Cro.  Car.  404 540 

Haylock  v.  Sparke,  1  E.  &  B.  471  ;  22  L.  J.  M.  C  67  ;  16  J.  P.    308  ; 

17  J.  P.  262  .  .  .  .  .  .  .  .     592 

Hayner  v.  Cowd'en,  27  Ohio  St.  292  .  .  .  .       .       69 

Haythorn  v.  Lawson,  3  C.  &  P.  296  .  .  .30,  307,  336,  418 

Hayward  &  Co.  v.  Hayward  &  Sons,  34  Ch.  D.  198  ;  56  L.   J.    Ch.   287  ; 
*  35  W.  R.  392  ;  55  L.  T.  729;    3  Times  L.   R.    102  ;    82  Law  Times 

(Newspaper),  61         ......  .     259, 342 

Haywood  »..Nayler,  (1636),  1  Roll.  Abr.  50  .  .  .  .127 

Head  v.  Briscoe  et  ux.,  5  C.  &  P.  485  ;  2  L.  J.  C.  P.  101        .  .      230,404 

Hearne  v.  Stowell,  12  A.  &E.  719  ;  11  L.  J.  Q.  B.  25  ;  4  P.  &  D.  696  ;  6 

Jur.  458        .  .  .  .  .     26,  128,  159,  243,  268,  578,  582 

Hedley  v.  Barlow,  4  F.  &  F.  224  ....  43,  46,  573 

Helmore  v.  Smith,  Ex  parte  Smith  (C.  A.),  56  L.  J.  Ch.  145  ;    35  W.    R. 

157  ;  56  L.  T.  72 498 

Helsham  v.  Blackwood,  11  C.  B.  Ill  ;  20  L.  J.  C.  P.  187  ;  15  Jur. 

861     .......    36,  171,  173,  539 

Heming  and  Wife  p.  Power,  10  M.  &  W.  564  .  .        55,  63,  107,  123 

Hemmings  v.  Gasson;  El.  Bl.  &  El.  346  ;  27  L.  J.  Q.  B.    252  ;  4  Jur.  N. 

834;  22  J.  P.  710 103,233,281 

Henderson  v.  Rroomhead,  4  II.  &  N.   569  ;  28  L.  J.  Ex.   360  ;    5  Jur. 

N.  S.  1175  .  .     • 191,  193 

Henwood  v.  Harrison,  L.  R.  7  C.  P.  006;  41  L.  J.  C.  P.  200;  20  W.  R. 

1000 ;  26  L.  T.  938  .  .  .  .  .         33,  43,  212 

Heriot  v.  Stuart,  1  Esp.  437     ......      29,  30,  49 

Hermann  Loog*.  Bean  (C.  A.),  26  Ch.  D.  306;    53  L.  J.   Ch.   U28;    32 

W.  R.  994  ;  51  L.  T.  442  ;  48  J.  P.  708       .  .  .         342,  340,  363 

Herver  v.  Dowson,  (1765),  Bull.  N.  P.  8       ....         214,219 

Hewley's  Charitii  s,  Lady  (Shore  v.  Wilson),  9  Clark  &  Fin.  355       .       441,  442 

443,  459,  461,  464,  467 
Hext  ».  Yeomans,  4  Rep.  15  .  .  .  .  .  .  .     122 

Hey  v.  Moorhouse  and  others,  6  Bing.  X.  C.  52     .  .  .         .       .     540 

Heymann  v.  The  Queen,  L.  It.  8  Q.  B.  105  ;  21  W.  R.  357  ;  28  L.  T.  102     605 
Hibbins  v.  Lee,  4  F.  A  F.  243  ;  12  L.  T.  541  .  .  .36,  46 

Hibbs  v.  Wilkinson,  1  F.  &  F.  608  .  .  .  .  .     52,  233 

Hickinbotham  v.  Leach,  10  31.  &  W.  361  ;  2  Dowl.  N.  S.  270.        Ill,  178,  538 
Hicks'  (Sis  Bapli^t)  Case,  R.  v.  Garret,  Hob.  215  ;  Poph.  139  .  21,  432 

Higginson®.  Flaherty,  4  Ir.  C.  L.  R.  125  .  .  .  .      .     190 

Higiimore  v.  Earl  and  Countess  of  Harrington,  3  C.  B.  N.  S.  142  .  67, 

74,  583 
Hill  r.  Campbell  and  Wife,  L.  R.  10  C.   P.   222  ;  44  L.J.  C.  P.   97  ;  23 

W.  It.  336  ;  32  L.  T.  59  .....     555 

v.  Hart  Davies,  21  Ch.  D.  798  ;  51  L.  J.  Ch.  845  ;  31  W.  R.  22  ; 

47  L.  T.  82     .     .     .     .     .     .     343,  346,  303 

Hill's  Executors  v.  Metropolitan  District  Asylum,  49   L.  J.    O.   B.   668; 

(38) 


TABLE   OF  CASES.  xxxix 

(The  paging  refers  to  the  [*]  pages.)  [*xxxix.] 

TT^i fq-1ir|  PAGE 

43  L.'T.  462  ;  W.  X.  1880,  p.  98 369 

Hilliard  (Sir  Christopher)  v.  Constable,  Cro.  Eliz.  306  ;  Moore,  418  .       78 

Hinrichs  v.  Bemdes,  W.  N.  1878,  p.  11  341,  345,  359,  3(53 
Hirst  v.  Goodwin,  3  F.  &  F.  257  .  .  .  304,  306,  309,  333 
ffixe  r.  Hollingshead  (1032),  Cro.  Car.  261  ....  87 
Hoare,  Ex  parte,  23  L.  T.  83 42!),  523 

v.  Silverlock   (No.    1.    1848)  12   Q.   B.   624;   17  L.  J.  Q.  B.  306; 

12  Jur.  695    .  .  20,21,105,244,566,572 

r        (No.  2,  1850),  9  C.  B.  20  ;  19  L.  J.  C.  P.  215       .     249,  584 

Hobbs  v.  Bryers,  2  L.  R.  Ir.  496 241 

Hod«-kins  et  ux.  v.  Corbet  et  ux.,  1  Str.  545        .  .  .  .86,  133 

Hodgson  r.  Scarlett,  1  15.  &  Aid.  232  ;  Holt,  N.  P.  621       .  .  .190 

Hoev  r.  Felton,  11  C.  B.  N.  S.  142  ;  31  L.  J.  C.  P.  105  .  .       .     327 

Hogg  v.  Dorrah,  2  Post.  (Alabama)  212        .  .  .  .  .73 

Holland  r.  Stoner,  Cro.  Jac.  315  .  .  .  .  .       .       96 

Hollingshead's  Case  (1032),  Cro.  Car.  229      .  .  .  .  .87 

Hollingsworth  v.  Brodriek,  4  A.  &  E.  646  ;  6  N.  &  M.  240  ;  1  11.  &  W. 

691         .  .•  .  .  .  .       .     525 

■ v.  Shaw,  19  Ohio  St.  430      .  .  .  .  .       57 

Hollis  (Sir  John)  v.  Briscow  et  ux.  Cro.  Jac.  58  .  .  73 

Holmes  «.  Catesby,  1  Taunt.  543      .  .  ...  .        178,538 

v.  MOuntstephen,  L.  R.  10  C.  P.  474  ;  33  L.  T.  351     .  .       .     528 

Holt,  L>  re,  11  Ch.  D.  168  ;  27  W.  R.  485  ;  40  L.  T.  207  .  .  .     499 

v.  Scholeheld,  6  T.  R.  691 56,  62,  101,  123 

(Sir  Thomas)  ».  A  si  rigg,  Cro.  Jac.  184  ...  119 

Holwood  v.  Hopkins  (1600),  Cro.  Eliz.  787  .  .  .  .       299,  331,  .333 

Home  v.  Bentinck,  4  Moore,  563  ;  2  B.  &  B.  130      .  .  189,  195,  563 

Homer  ».  Taunton,   5  H.  &  N.   661  ;  29  L.   J.  Ex.  318  ;  8  W.  R.  499  ; 

2  L   T    512  .  .  .  .  •       22,  104,  111,  566 

lioness  and  others  r.  Stubbs,  7  C.  B.  N.  S.  555  ;  29   L.  J.  C.  P.  220  ;  8 

W.  R.  188  ;  6  Jur.  N.  S.  682      .  .  .  .  .     538 

Hooker  v.  Tucker,  Holl,  39  ;  Carth.  330  .  .  .  .       .       81 

Hooper  v.  Truscott,  2  Scott,  672  ;  2  Bing.  N.  C.  457  .  .  225,  270,  275 

Hopper  v.  Warburton,  7  L.  T.  722         .  .  .  .  .       .     520 

Hopwood  i:  Thorn,  8  C.  B.  293  ;  19  L.  J.  C.  P.  94  ;  14  Jur.  S7  .  75,  84, 

205,  207,  212,  237,  299,  305,  308 
Horner  v.  Marshall's  Administratrix,  5  Munford  (Virginia),  466     .  .     406 

Hort  d   Reade.  Ir.  R.  7  C.  L   551 177,  636 

Hoskyns,  Ex  parte,  33  J.  P.  68  .  .  .  .  .  .431 

Houlden  v.  Smith,  14  Q.  B.  841  ;  19  L.  J.  Q.  B.  170    .  .  .       .     187 

Household  aud  another  ».  Fairburn  and  another,  51  L.  T.  498  .  147,  350 
How  v.  Prin  (1702),    Holt,   652  ;    7  Mod.   107  ;    1  Brown's  P.   C.   64  ;    2 

Salk.  694  ;  2  Ld.  Raym.  812  ....     71,72,121,241 

Howard  v   Gosset,  10  Q.  B.  359,  411  ;  14  L.  J.  Q.  B.  367  ;  16  L.  J.  Q.  B. 

345  ;  11  Jur.  750  ;  Car.  &  M.  380  .....  490,501 
Howe  >\  Buffalo  &  Erie  Ry.  Co.,  38  Barb.  (New  York)  124  .  .8 

v.  Jones,  1  Times  L.  R.  19,  461      .  .  .  .         223,  273,  281 

Hovt  v.  McKenzie,  3  Barb.  Ch.  R.  320  (New  York)  .  .        348,  357 

Hubert,  Hurler  &  Son,    Ex  parte,  47  J.  P.  724  ;  15  Cox,  C.  C.  166  ;  74 

Law  Times  (Newspaper),  p.  229  .  .  .  '  374,  384,  590 
Huckle  v.  Reynolds,  7  C.  B.  N.  S.  114.  .  .  .  56,  133,  399 
Hudson  v.  Tooth,  2  P.  D.  125  ;  35  W.  R.  107  ;  35  L.  T.  820  .  498,  502 
Huff  v.  Bennett,  4  Sand.  (New  York),  120        .            .            .            .  413 

Hughes  v.  Gibson,  Swansea  Winter  Assizes,  1886  ....  379 
— —  r.  Porral  and  others,  4  Moore,  P.  C.  C.  41  .  .  .  503 
Hume  r.  Marshall.  Times,  Nov.  26,  1877  ;  42  J.  P.  146  .  68,  78,  213,  285 
Humphreys  r.  Miller,  4  C.  &  P.  7 243,  566 

"     r.  Still  well,  2  F.  &  F.  590  .  .  .  .  .     240 

Humphrys  v.  Stanfeild  (1638),  Cro.  Car.  469  ;  Godb.  451  ;  Sir  W.  Jones, 

388  ;  2  Roll.  Abr.  38  .  .  .  .  .  .141 

Hunt  ».  Algar  and  others,  6  C.  &  P.  245  .  .         25,  99,  160,  313,  579 

v.  Bell,  1  Bing.  1 574 

(39) 


xl  TABLE  OF  CASES. 

l*xl.]  (The  paging  refers  to  the  [*]  pages.) 

Hun— Joh.  page 

Hunt  r.  Goodlake,  43  L.  J.  C.  P.  54  ;  29  L.  T.  472    .        24,  94,  100,  117,  572 

v.  Jones,  Cro.  -lac.  499  .  .  .  .  .  .305 

Hunter  v.  Sharpe,  I  F.  &  F.  983  ;  15  L.  T.  421  ;  30  J.  P.  149  .  27,  51,  101 

Huntley  v.  Ward,  G  C.  B.  N.  S.  514  ;  1  F.  &  F.  552  ;  6  Jur.  F.  S.  18     .      200. 

200,  2132,  234,  269,  283,  287 
Burtert  v.  Weines,  27  Iowa,  134        .....        152,223 

Huson  v.  Dale,  19  Mich.  17  .  .  .  .  .      .     57''. 

Hutton  v.  Harrison,  Button,  131        ......     493 

Buxley  v.  West  London  Extension  Ry.  Co.,  17  Q.  B.  D.  373  .  .      .     367 


F  Anson  v.  Stuart,  1  T.  R.  748  ;  2  Sm.  L.  C.  6th  edit.  p.  57     .  21,  132,  178,  53* 
Ingalls  v.  Allen,  1  Breese,  233     .  .  .  .  .  .       .     131 

Ingram  v.  Lawson,  6  Scott,  755  ;  5  Bing.  N.  C.  66  ;  7  Dowl.  125  ;  1  Arn. 

387  ;  3  Jur.  73  [as  to  plea  of  justification]  ....     170 

6  Bing.  N.  C.  212 ;  8  Scott,  471  ;  4  Jur.  151  ;  9  C.  &  P.  326       32,  133,  138. 

29*4,  295,  307,  303,  313,  520,  570,  577 
Inman  r.  Foster,  8  Wend.  602  .....         165,170 

Ireland  v.  Champneys,  4  Taunt.  884      .  ,  .  .  .       .     407 

Irwin  v.  Brandwood,   2  H.  &  C.  960  ;  33  L.   J.  Ex.  257  ;  10  Jur.  N.  S. 

370  ;  42  W.  R,  438  ;  9  L.  T.  772  .  .  .  .  27,  68 

Isaac,  In  re,  Jacob  v.  Isaac  (C.  A.),  30  Ch.  D.  418  ;  54  L.  J.  Ch.  1136  ;  33 

W.  R.845;  53  L.  T.   478     .  .  .  .  .       .     396 

Isham  /•.  York,  Cro.  Car.  15  .  ...  .  .  .  .72 

Ivens  v.  Butler  and  Wife,  7  E.  &  B.   159  ;  26  L.  J.  Q.  B.  145  ;  3  Jur. 

N.  S.  334 .  .  .401 


Jackson  v.  Adams,  2  Scott,  599  ;  2  Bing.  N.  C.  402  ;  1  Hodges,  78,  339      63 

72,  277 

v.  Hopperton,  16  C.  B.  N.  S.  829  ;  12  W.  R.  913  ;  10  L.  T.  529  .     182 

203,  274,  299 

v.  Nawhy,  1  Ch.  D.  86  ;  45  L.  J.  Ch.  53  ;  24  W.  R.  92  .  .     502 

Jacob  ».  Isaac.  In  re  Isaac  (C.  A.),  30  Ch.  D.  418  ;  54  L.  J.  Ch.  1136 ;  33 

W.  R.  845  ;  53  P.  T.  478 396 

v.  Lawrence,  4  L.  R.  (Ir.)  579  ;  14  Cox,  C.  C.  321  .  .  231,  283 

v.  Mills,  1  Ventr.  117  ;  Cro.  Jac.  343 63 

James  v.  Boston,  2  C.  &  K.  4 218,  226 

v.  Brook,  9  Q.  B.  7  ;  16  L.  J.  Q.  B.  17  ;  10  Jur.  541  .  68,  80 

v.    (as  to  costs)  16  L.  J.  Q.  B.  168  .  .  .     369 

v.  James,  L.  R.  13  Eq.  421  ;  41  L.  J.  Ch.  253  ;  26  L.  T.  568     .     341,  349 

v.-  Jolly,  Bristol  Summer  Assizes,  1879  .  .  .  -212 

v.  Rutlech,  4  Rep.  17  ...  .         100,  118,  127,  132 

Jarnigan  v.  Fleming,  43  Miss.  711  .  .  .         .  .  .       .     165 

Jarvis  v.  Hatheway,  3  Johns.  (N.  Y.  Supr.  Ct.)  178  ...     243 

Jefferies  v.  Duncombe,  2  Camp.  3  ;  11  Past,  226  .  .  .13,  20 

Jekyll  v.  Sir  John  Moore,  2  B.  &  P.  N.  R.  341  ;  5  Esp.  63  .  .     189 

Jenkins  v.  Smith,  Cro.  Jac.  685  .  .  .  .  •  .76 

Jenkinson  v.  Mayne,  Cro.  Eliz.  384  ;  1  Yin.  Abr.  415  .  .  54 

Jenncr  and  another  r.  A'Beckett,  L.  R.  7  Q.  B.  11  ;  41   L.  J.   Q.   B.    14  ; 

20  W.  R.  181  ;  25  L.  T.  461  ;  36  J.  P.  38  .  25,  31,  51,  81,  113 

Jennings  and  Wife  v.  London  General  Omnibus  Co.,  30  L.  T.  266  .     528 

Jesson  v.  Bayes  (1636),  Roll.  Abr.  63  ....  82,138 

Joanne^,  Count,  ».  Bennet,  5  Allen  (87  Masa.),  169  .  .  .  .219 

Johns  *.  Gittings,  Cro.  Eliz.  239  .....     82,173 

r.  James,  13  Ch.  1).  370  .  .  .  .  •     548 

Johnson  i\  Aylmer,  Sir  John,  Cro.  Jac.  126       .  .  .  .  119 

v.  Browning,  6  Mod.  217      .  .  .  .  .  .178 

v.  Evans,  3  Fsp.  32         .....  194,222 

r-io) 


TABLE  OF  CASES.  xli 

(The  paging  refers  to  the  [*]  pages.)  [*  xllJ 


l'AGE 


Johnson1;-.  Hudson  &  Morgan,  7  A.  &.  E.  233,  n.;  1  II.  &  W.  680  159,  562 


v.  Lemmon,  2  Roll.  Rep.  144 


80 
Palm^'i^p'' D."  258;  27  W.  R.  941         .  .       .     587 

r.  St.  Louis  Dispatch  Co.,  65  Missouri,  539  ;  2  M.  App.  R.  565  ; 

27   Vmer    R   293  •  *•■• 

Jolliffe,  Ex  parte,*,,  v.  Lefroy,  L.  R.  8  Q.  B.  134 ;    42  L.  J.  Q.  B    121; 

21  W    R  332  ;  28  L.  T.  132  ;  36  J.  P.  758  .             .             .        506,  o07,  510 
Jones,  Ex  parte,  13  Ves.  237 498 

r.  Bewicke,  L.  R.  5  C.  P.  32 538 

•  v.  Broadhurst,  9  C.  B.  173      .  .  .  .  •  •    ?4U 

.  r   Curling  and  another  (C.  A.),  13  Q.  B.  J).  262  ;    53  L.    J.   Q.  B. 

373  ;  32  W.  R.  651  ;  50  L.  T.  349 367 

>■   Davers  »eZ  Dawkes  (1597),  Cro.  Eliz.  496  ;  1  Roll.  Abr.  74  .    109, 

132,  529 

„.  Heme,  2  Wils.  87 t      56, ,61 ,88,  122 

r   Hough  (C.  A.),  5  Ex.  D.  115  ;  49  L.  J.  C.  P.  211  ;  42  L.  T.  108    581 

. .  v   Littler,  7  M.  &  W.  423  ;  10  L.  J.  Ex.  171         .  .  67,  80,  125,  568 

v.  McGovern,  Ir.  1  C.    L.  681  .  ■     253 

.  s   Mackie,  L.  R.  3  Ex.  1  ;  37  L.  J.  Ex.  1  ;  16  W.  R.  109  ;  17  L.  T. 

151  ;  31  J   P.  760 541 

. D   Orckard,  16  C.  B   614  ;  24  L.  J.  C.  P.  229  ;    3  W.  R.  554  .     599 

r.  Pritchard,  18  L.  J.  Q.  B.  104  ;  6D.  &  L.  529  .       .     525 

r.  Richards,  15  Q.  B.  D.  439  ;  1  Times  L.  R.  660     .      547,  551,  560,  661 

r    Scottish  Accident  Insurance  Co.  Ld.,  17  Q.  B.  D.  421  ;  55  L.  J. 

Q.  B.  415;  55  L.  T.  218 519 

o.  Stevens,  11  Price,  235 1T8,  559 

r   Thomas,  34  W.  R,  104  ;  53  L.  T.  678  ;    50  J.  P.   140  ;    1  Times 

UK.  573  ....       154,204,247,289 

v       2  Times  L.  R.  95 224 

v   Williams,  1  Times  L.  R.  572     ....        153,  212,  224 

v.  Young,  2  II.  &  C.  270  ;  32  L.  J.  Ex.  254  .  .  .  .368 

Justice  v.  Gosling,  12  C.  B.  39  ;  21  L.  J.  C.  P.  94        .  .  .       .     5,6 


Kain  v.  Farrer,  37  L.  T.  469  ;  W.  N.  1877,  p.  263  . 

Kane  r.  Mulvany,  Ir.  R,  2  C.  L.  402       .  .  .  C5,  136, 

Kearney  v.  Harrison,  10  L.  R.  Ir.  1  i' 

Keeblew.  Hickeringill,  11  East,  576,  n.  .... 

Keene  r.  Ruff,  1  Clarke  (Iowa),  482  . 

Keenholts  v.  Becker,  3  Denio,  N.  Y.  352 

Keighley  v.  Bell,  4  F.  &  F.  763 

Keiser  v.  Smith,  46  Amer.  Rep   343        ..... 
Kelly  o.  Partington,  4  B.  &  Ad.  700  ;  2  N.  &  M.  460  ;    5  B.   &  Ad.  645  ; 

3N.&I.  116       ....  90,91,114,279,328 

Sherlock,  L   R.  1  Q.  B.  686  ;  35  L.  J.  Q.   B.  209  ;    12  Jur.    N.    S. 

937  •  29  J.  P.  725  ;    30  J.  P.  791,  805  .  .  40,  296,  318,  533 

r  Tinling,  L.  R.  1  Q.  B.  699  ;  35  L.  J.  Q.  B.  231  ;    14  W.   R.  51  ; 

13  L  T.  255  ;  12  Jur.  N.  S.  940  ;  29  J.  P.  725  ;  30  J.  P.  791,  805  .26,  47 
Kemp  v.  Neville,  10  C.  B.  N.  S.  523  ;  31  L.  J.  C.  P.  158  ;  4  L.  T.  640  .  188 
Kendillon  v.  Maltby,  1  Car.  &  M.  402  ;2  M.&  Rob.  438  ;  1  Dow.  &  Clark, 

495  .....       168,  188,189,  334 

Kennedy  d.  Hilliard,  10  Ir.  C.  L.  R.  195  ;  1  L.  T.  578.  .  .    185,  192 

Kent  v.  Lewis,  21  W.  R.  413  .  .  ...  •  •     365 

v.  Stone,  Bristol  Summer  Assizes,  1880      .  .  .  .     304 

Kerr  v.  Gandy,  3  Times  L.  R.  75  .....  341 

v.  Shedden,  4  C.  &  P.  528 208,  327 

Kershaw  v.  Bailey,  1  Exch.  743  ;  17  L.  J.  Ex.  129       .     22s,  241,  245,  273,  289 
Keyzor  and  another  r.  Newcomb,  1  F.  &  F.  559  .  .  .29,  160 

Kielley  ».  Carson  and  others,  4  Moore,9  P.  C.  C.  03  .  .  490,  491 

Kilmore  v.  Abdoolah,  27  L  J.  Ex.  307 584 

(41) 


555, 

563 

257, 

265 

367 

16 

152 

332 

193, 

195 

319 

xlii  TABLE  OF  ('ASKS. 

[*xlii]  (The  paging  refers  to  lae  [*]  pages.) 

Kim- Lee.  PAf;1J 

Kimmis  v.  Stiles,  44  Vermont,  351  .  .  .  .  84 

Kine  r.  Sewell,  3  M.  &  W.  297        .  .  .    205,  217,  224,  231,  236,  244 

King?;.  Bagg,  Cro.  Jac.  331  .......     123 

v.  Hoare,  13  M.  &  W.  494,  504 522 

v.  Lake,  2  Ventr.  28  ;  Hardres.  470     ....  .3,76 

r.  Waring  et  ux.,  5  Esp.  15  .....    168,  230 

0.  Watts,  8  C.  &  P.  614  .  .  .  209,214,219,399,327 

v.  Wood,  1  ISTott  &  M.  (South  Car.)  184    .  .  .  .23,61 

and  another  v.  Hawkesworth,  4  Q.  B.  D.  371  ;    48  L.  J.  Q.  B.  484  ; 

27  W.  R.  660  ;  41  L.  T.  411 368,  588 

Ki.mahan  v.  McCullagh,  Ir.  R.  11  C.  L.  1  .  .  .  .   105,  242 

Kirov  v.  Simpson,  10  Exch.  358  ;    3  Dowl.  791  .  .  .     188,540 

Kirkpatrick  v.  Eagle  Lodge,  26  Kansas,  384  ;  40  Amer.  I?.  316      237,  243,  247 
Kitcat  r.  Sharp,  52  L.  J.  Ch.  134  ;  SI  W.  R.  227  ;  4S  L.  T.  64  339,  496 

K  linck  v.  Colby  and  others,  1  Sickel  (46  N.  Y.),  427        .  .  224,  239 

Knapp  v.  Fuller,  2.1  Vermont,  311  ;  45  Amer.  li.  618  .  .  .129 

Knight  r.  (alms,  1  A.  &  E.  43  ;  3  N.  &  M.  467  .         .  218,  328,  330 

v.  Pursell,  49  L.  J.  Ch.  120  ;  28  W.  R.  90  ;  41  L.  T.  581  .  .     369 

and  wife  v.  Lynch,  9  II.  L.  C.  577  ;  8  Jur.  N.  S.  724  ;  5  I,  T.  201.     87, 

88,  90,  91,  300,  307,  326,  327,  328,  329,  335,  336,  399 

Kcenig  v.  Ritchie,  3  P.  &.  F.  413 52,234 

Krebso.  Oliver,  12  Gray  (78  Mass.),  239        .  .  .  .219 

Kurtz  v.  Spence,  33  Ch.  D.  579  ;  55  L.  J.  Ch.  919  ;  35  W.  R.  26  ;  55  L.  T. 

317 351 


Labouchere  v.  Shaw,  41  J.  P.  788  .  .  .  .  •  •     546 

Lafone  v.  Smith,  3  H.  &  X.  735  ;  28  L.  J.  Ex.  33  ;  4  Jur.  X.  S.  10(14       .     324 
Lake  ».  Kin"-,  1  Lev.  241  ;  1  Saund.  131  ;  Sid.  414  ;  1  Mod.  58  153,  186, 

226,  246,  250,  290 
Lamb.  v.  Minister,  10  Q.  B.  D.  110  ;  52  L.  J.  Q.  B.  46  ;  31  W.  II.  117  ;  47 

L.  T.  442  .  .  .  .  .  •  •  •  •     551 

Lamb's  Case  (John),  9  Rep.  60      .  .  .  .  .        157,  433,  434 

Laming  v.  Gee  (C.  A.),  28  W.  R.  217 584 

Lancaster  v.  French,  2  Str.  797    .  .  .  .  .  .09,  82 

Lane  v.  Applegate,  1  Stark.  97  .  .  .  .  .540 

Langley,  Ex  parte,  Ex  parte  Smith,  Be  Bishop,  13  Ch.  I).  110  ;    49  L.  J. 

Bkcy.  1  ;  28  W.  R.  174  ;  4t  L.  T.  388 499 

Langridge  v.  Campbell,  2  Ex.  D.  281  ;  46  L.  J.  Ex.  277  ;  25  W.  R.  351  ; 

36  L.  T.  64 370 

Langrish  v.  Archer,  10  Q.  B.  D.  44  ;   52  L.  J.  M.  C.  47  ;    31  W.  R.  183  ; 

47  L.  T.  548  ;  47  J.  P.  295  ;  15  Cox,  C.  C.  194      ..      .  .       .     379 

Large  v.  Large,  W.  N.  1877,  p.  198  .  .  .  .  .  .     587 

Latimer  v.  Western  .Morning  News  Co.,  25  L.  T.  44     .  .  .  416 

Laughton  v.  Bishop  of  Sodor  and  .Man,  L.  R.  4  P.  C.  495  ;  42  L.  J.  P.  C. 

11  ;  31  W.  11.  204  ;  28  L.  T.  377  ;  9  Moore,  P.  C.    C.    N.    S.    318  ;  37 

J   P.  244  .  .  .  .  .  •  211,233,240,272,284 

Law  v.  Harwood  (1629),  Sir.  W.  Jones,  106;  Palm.  529  ;  Cro.  Car.  140    .     141 
Lawless   p.Anglo-Egyptian   Cotton   and   Oil   Co.,  L.  R.  4  Q.  B.  262  ;  10 

B.  &  S.  226  ;  38  L.  J.  Q.  B.  129  ;  17  W.  R.  498  ;  33  J.  P.  693       153,  240, 

240,  286,  290,  559 
Lawrence  v.  Smith,  Jacob,  471  .  .  .  •  .       .        8 

v.  Woodward,  Cro.  Car.  277  ;  1  Roll.  Afcr.  74    .  .  .       55 

Lay  v.  Lawson,  4  Ad.  &  E.  795  ....  174,  230,  247.  286 

Lazarus  v.  Simmonds  (1818),  3  Mer.  393,  n.  .  .  .  .463 

Leach's  Case,  11  St.  Tr.  307  ;  19  How.  St.  Tr.  1002      .  .  .     593 

Leather  Cloth  Co.,  Limited  v.  American  Leather  Cloth   Co.,   Limited,  4 

De  G.  J.  &  S.  137  ;  33  L.  J.  Ch.  199  .....     349 

Lee  v.  Colver,  W.  N.  1876,  p.  8  ;  Bitt.  80  ;  1  Charley,  86  ;  20  Sol.  J.  177  ; 

60  L.  T.  Notes.  157  .  .  .  .  .  ■  •     543 


TABLE  OF  CASES. 


xliii 


(The  paging  refers  to  the  [*]  pages.) 


Lee — Lum, 

Lee  i\  lluson,  Peake,  223 

Le  Farm  and  another  «.  Malcolmson,  1  II.  L.  &  C.  63r 

L.  T.  (O.  S.)  61 
Lefroy  v.  Burnside  (No.  1),  4  L.  R.  Ir.  340  ;  41  L.  T 
260      .... 

r.     (No.  2),  4  L.  R.  Ir.  556 

Lentuer  v.  Merfleld  (C.  A.),  Times,  May  6th,  1880      . 

Lessee  Sturgeon  v.  Douglass,  10  Ir.  L.  R.  128  a. 

Leversage  v.  Smith,  Cro.  Eliz.  710 

Levefs  Case,  Cro.  Eliz.  289     . 

Levi  v.  Milne,  4  Bing.  195  ;'  12  Moore,  418        . 

Levy  v.  Lawson,  E.  B.  &  E.  560  ;  27  L.  J.  Q.  B.  2    ! 

v.  Moylan,  19  L.  J.  C.  P.  308  ;  1  L.  M.  &  P.  307 

Lewes  v.  Walter  (1617),  3  Bulstr.   225  ;    Cro.  Jac.   40: 
444      . 

(Earl  of)  r.  Barnett,  0  Ch.  D.  252  ;   47  L.    J. 

101  ..... 

Lewis  v.  Clement,  3  B.  &  Aid.  702  ;  3  Br.  &  B.  297 


[*  xliii.] 

PAGE 

.     227 
;  8  Ir.  L.  R.418;   13 
30,  130,  307,  336,  417,  418 
199  ;  14  Cox,  C.  C. 

553,  659 

.     36,  37,  43,  171 

.       .     205 


.     79,  92, 
104,  131,  578,  579, 


497 
56 
400 
582 
25 1 
510 


Coke,  Cro.  Jac.  424  . 

Few,  5  Johns.  1  ... 

Levy,  E.  B.  &  E.  537  ;  27  L.  J.  Q.  B.  282 


. .     50 
413;   Roll.   Rep. 

.     132,  105 
Ch.   144;    2G  W.  R. 

.  .  .     500 

7  Moore,  200      .      2s,  99, 
173,  231,  539 
.     121 
.       .       44 
;  4  Jur.  N.  S.  970     .       44, 


99,  176,  192,  248,  250,  252,  258,  261 


40, 
3G9 


104,  176,  257, 


D.  Walter,  4  B.  &  Aid.  605 

and  Herrick  v.  Chapman,  2  Smith  (16  N.  Y.  R.), 

Lewknor  «.  Cruchleyand  wife,  Cro.  Car.  140 

Leycroft  v.  Dunker,  Cro.  Car.  317       .... 

Leyman  v.  Latimer  and  others,  8  Ex.  D.   15,   852  ;    46  L.  J.   Ex.  705  ; 

47  L.  J.  Ex.  470  ;    25  W.  R.   751  ;   26  W.  R.  305  ;    37  L.  T.  360, 

819  ;  14  Cox,  C.  C.  51  ;  42  J.  P.  104        .        22,  59,  172,  178,  538,  545,  641 


260 

273 
55 
80 


499 

349 

2,  223 

537 

505 

72 

519 

;L.  T. 

216,  282 

.     190 

.      518,  521 

46,  496,  497 

.     583 

79 


Liberia  (Republic  of)  v.   Roye,  1  App.  Cas.  139  ;   45  L.  J.  Ch.  297  ;  24 

W.  R.  967 ;  34  L.  T.  145  .  .  .  .  .       . 

Liebig's  Extract  of  Meat  Co.  Limited  v.  Anderson,  55  L.  T.  206     . 
Lightbody  v.  Gordon,  9  Scotch  Sessions  Case,  4th  Series,  934  .         22S 

Li!  lie  v.  Price,  5  A.  &  E.  645 

Lincoln  (Earl  of)  v.  Fisher,  Cro.  Eliz.  581  ;  Ow.  113  ;  Moore,  470 
Lindsey  v.  Smith,  7  Johns.  359     ..... 

Lisbon-Berlyn  Gold  Fields,  Limited  v.  Heddle,  52  L.  T.  790 
Lister    r.    Ferryman,    L.    R.    4   11.    L.   521  ;  39   L,  J.  Ex.  177  ; 

269  ....... 

Little  d  Pomeroy,  Ir.  R.  7  C.  L.  50 

Littleboy  v.  Wright,  1  Lev.  69  ;  1  Sid.  95 

Littler  v.  Thompson,  2  Beav.  129     ..... 

Lloyd  v.  Jones,  7  B.  &  S.  475     ..... 

London  v.  Eastgate,  2  Rolle's  Rep.  72     . 

London  &  Blaekwall  Ry.  Co.  v.  Cross  (C.  A.),  31  Ch.    D.   854  ;    ! 

Ch.  313  ;  54  L.  T.  309      . 
Long  v.  Chubb,  5  C.  &  P.  55       ..... 
Lovejoy  v.  Murray,  3  Wallace  (Sup.  Ct.),  1 
Lovett  v.  Weller,  1  Roll.  R.  409  .... 
Lowe  v.  Harewood,  Sir  W.  Jones,  196  ;  Cro  Car.  140 
v.  Holme  and  another,  10  0.  B.  D.   286  ;    52  L.  J.   Q.   B. 

W.  R.  400 

Lovd  c.  Pearse,  Cro.  Jac.  424 

Lucan  (Earl  of)  v.  Smith,  1  II.  &.  N.  481  :    23  L.   J 

N.  S.  1170  ...... 

Lucas  v.  Flinn,  35  Iowa,  9      . 

Luckerman  i\  Sonnenschein,  32  Freeman  (62  Illinois),  115 

Luckumsev  Rowji  >\  Hurburn  Nursey  and  others,  I.  L.  R.  5  Bom.  580  15,  335 

Lnmby  v.  Alldav,  1  Tyrw.  217 ;  1  C.  vfc  J.  301  .  .        68.  80,  85,  21)6 

Lnmley  r.  Gye,  2  E.  <fc  B.  216  ;  22  L.  J.  Q.  B.  463  ;  17  Jur.  827        .        15,  828 


L.  J. 


Exch.  94 


31 


Jur. 


360 
27 
522 
144 
139 

371 

127 

036 
84 

208 


(43) 


xliv  TABLE  OF  CASES. 

[*  xliv]  (Tlie  l);lsi"o  refers  lo  the  [*]  pages.) 

Lun    Mar.  page 

Lund  v.  Campbell  and  others  (C.  A.),  14  Q.  B.   D.   821  ;    54  L.  J.   Q.   B. 

281  ;  38  W.  11.  510  ......  .     371 

Lynam  v  Gowing,  G  L.  R.  Ir.  259  ....         191,  229,  253 

Lynch  c.  Knight  and  wife,  9  II.  L.  C.  577;  8  Jur.  N.  S.  724  ;   5  L.  T. 

291        .  .       87,  88,  90,  91,  300,  307,  320,  327,  328,  329,  335,  330,  399 

Lytton  (Earl)  t\  Devey  and  others,  54  L.  J.  Ch.  293  ;  52  L.  T.  121  .     348 


McAleece,  In  re,  Ir.  R.  7  C.  L.  146      .  .  .  .  .       .     502 

Macartney  v.  Corry,  7  Ir.  R.  C.  L.  342  .  .  .  .  .503 

McBride  v.  Ellis,  9  Mich.  313       .  .  .  .  .  .       21 

McCabe  v.  Foot.  18  Ir.  Jur.  (vol.  xi.,  N.  S.)  287  ;  15  L.  T.  115       .  .       50 

M'Cauley  v.  Thorpe,  1  Chit.  685  ;  5  Madd.  19  ....     556 

McComb  v.  Gray,  4  L.  R.  (Ir.)  432      .  .  .  .  .  .     502 

MeCombs  c.  Tutlle.  5  Blackford  (Indiana),  431  .  .  .       .     152 

Maccord  v.  Osborne,  1  C.  P.  D.  568  .....     117 

M'Corquodale  v.   Bell  and    another,   Weekly  Notes,   1876,  p.   39  ;    Bitt. 

111  ;  20  Sol.  J.  260  ;  60  L.  T.  Notes.  232     .  .  .  .       .     549 

McDermott,  In  re,  L.  R.  1  P.  C.  260  ;  L.  R.  2  P.  C.  341  ;  38  L.  J.    P.  C. 

1  ;  20  L.  T.  47 503 

M'Dougall  v.  Claridge,  1  Camp.  267  .....     239 

MacDougail  v.  Knight  and  Son  (C.  A.),  17  Q.  B.  D.  636  ;    55  L.  J.  Q.  B. 

464  ;  :J4  W.  R.^727  ;  55  L.  T.  274  ;  2  Times  L.  R.  357,  716,  797  .  259,  651 
M'Elvenev  v.  Connellan,  17  Ir.  C.  L.  R.  55  .  .  .       .     563 

Mac-ill's  Case,  2  Fowl.  Ex.  Pr.  404  .  .  .    .  .     495 

M'Gregor  v.  Gregory,  11  M.  &  W.  287  ;  12  L.  J.  Ex.  204  ;  2  Dowl.  N.  S. 

769  ......     23,  111,  177,  312 

v.  Thwaites  (1824),  3  B.  &  C.  24  ;  4  D.  &  R.  095  .        166,  193, 

249,  252 
Mclntyre  v  McBean,  13  Uftpcr  Canada,  Q.  B.  Rep.  534  .  .     228 

Maekay  v.  Ford,  5  H.  &  N.  792  ;  29  L.  J.  Ex.  404 ;  6  Jur.   N.  S.    587  ;  8 

W.  R.  586  .  ...'...     190 

Mackett  r.  Commissioners  of  Heme  Bay,  24  W.  R.  845  .  .    338,  495 

Macleod  v.  Wakley,  3  C.  &  P.  311  .  .  .  .        52,  280,  502 

M'Loughlin  v.  Dwyer  (1),  Ir.  R.  9  C.  L.  170  .  .  .  537,  553 

McMillan  v.  Birch,'  1  Bin n.  178  .  .  .  .  .  .68 

McNallv  r.  Oldham,  10  Ir.  C.  L.  R.  298  ;  8  L.  T.  604  .  .  .       .     253 

M'Pherson  v.  Daniels,  10  B.  &  C.  203  ;  5  M.  &  R.  251      .      103,  164,  165,  175, 

529 
Magratib  ».  Thin,  Ir.  R.  11  C.  L.  152  .....     212 

Maguire  v.  Knox,  Ir.  R,  5  C.  L.  408      .  .  .  .  .     101,  537 

Maitland  v.  Bramwell,  2  F.  &  F.  623  ....        216,  244 

Maitland  and  others  v.  Goldney  and  another  (1802),  2  East,  426        .       164,  418, 

564 
Malachy  r.  Soper  and  another,  3  Bing.  N.  C.  371  ;  3  Scott,  723  ;  3 Hodges, 

217      ........  .     140,  142 

Malmi  r.  Fitzgerald,  18  L.  R.  Ir.  187  .....     550 

v.  Stewart,  15  Ohio,  319     .  .  .  .  .  .  69 

Maloney  e.  Bartley,  3  Camp.  210    .  .  .  .        1:7,194,410,432 

ManbvV.  Owen  (1755),  4  Burr,  2329,  2404     .  .  .  .  .340 

«.  Witt,  18  C.  B.  544  ;  25  L.  J.  C  P.  294  ;  2  Jur.  N.  S.  1004        .        204 

231,  289 
Manning  v.  Axery  (1074),  3  Keb.  153;  1  Yin.  Abr.  553  .  .       .     141 

'   v.  (dement,  7  Bing.  362  ;  5  M.  &  P.  211      .  .  536,  574,  576 

Manserghj  Re,  1  B.  &  S.  400  ;  30  L.  J.  Q.  B.  298    ....     195 
March  v.  Davison,  9  Paige,  580  .  .  .  .  .  77 

Marks  v.  The  Conservative  Newspaper  Co.,  Limited,  3  Times  L.  R.  244.     256 

540,  654 
(44) 


TABLE  OF  CASES. 


xlv 


(The  paging  refers  to  the  [*]  pages.) 


[*  xlv.] 


Mar— Mil. 


Marlborough  (Duke  of),  Ex  parte,  5  Q.  B.   955  ;  18  L.  J.  M.  C.  105  ;  1 

Dav.  &  Mer.  720   .  .  .  .  .  ■  •        429,  505 

Marriott  v.  Chamberlain  (C.  A.),  17  Q.  B.   I).  154  ;  55  L.  J.  Q.  B.  448  ; 

34  W   R.  783  ;  54  L.  T.  714  ;  2  Times  L.  R.  551,  640        .         546,  547,  550 


Marsh  r.  Isaacs,  45  L.  J.  C.  P.  505 

Marshall  o.  Martin,  L.  R  5  Q.  B.  239  ;  39  L.  J.  Q.  1).  85  ;   18  W.  1 I  378  ; 

21  L.  T.  788  

Marten  r.  Van  Schaith,  4  Paige,  479  .... 

Martin  ».  Bannister,  4  Q.  B.  D.  212,   491  ;  48  L.  J.  Ex.  300  ;  27  W.  R. 

431       .  .  .  •  •  •  •  •  • 

v.  Loei,  2  F.  &  F.  654 105,  108.  574 

v.  Mackonochie,  3  Q.  B.  D.  730 498 

v   Strong,  5  A.  &  E.  535  ;  1  X.  &  P.  29  ;  2  II.  &  W.  336  .         244,  299 

».  Wright  (1833).  6  Sim.  297  .  .  .  .  344,  353,  318 

Martin's  Case,  2  Russ.  &  My.  674,  n.      .  .  .  .  .  495,  501 

Martyn  v.  Burlings,  Cro.  Eliz.  589    ...... 

— -    v.  Williams,  1  II.  &  N.  817  ;  26  L.  J.  Ex.  117  ... 

Marzetti  v.  Williams,  1  B.  &  Ad.  415  .... 

Masham  v.  Bridges,  Cro.  Car.  223  .  .  .  . 

Maskelvn  o.  Bishop,  Times,  Dec.  3,  1885      ..... 
Mason  V  Brentini,  15  Ch.  D.  287  ;  29  W.  R.  126  ;  42  L.  T.  720 ;  43  L.  T. 
557         .  .  .  .  ..  •  •       • 

v.  Jennings.  Sir  T.  Raym.  401.  .  . 

v.  Thompson,  Hutt.  38     .  .  .  .  •  • 

Massey  v.  Allen,  12  Ch.  D.  807  ;  48  L.  J.  Ch.  692  ;  23  W.  R.  213  ;  41  L.  T. 


306 

407 

510 


504 
13 
72 

583 

372 

13 

122 


408 

.       .     217 

.     299 

.       .     495 

.     321 

.       .       24 

27,  310,  318,  564 

.  122,  126 

.     507 

.      .     321 

54,  155,  435,  561 

.      .       73 

Bkcy.  87  ; 

.     498 

.  276,  280 

.     15,  89,  300 

.      .     584 


Masters  v.  Burgess,  3  Times  L.  R.  93     . 
Matthew  v.  Crass,  Cro.  Jac.  323 
Matthews  v.  Smith  3  Hare,  331  . 

Mawby  v.  Barber  (1826),  2  Starkie  on  Evidence,  p.  470 
Mawe  v.  Pigott,  Ir.  R.  4  C.  L.  54. 
May  *.  Brown,  3  B.  &  C.  113  ;  4  D.  &  R.  070 
— -  v.  Gybbons,  Cro.  Jac.  56S    .... 
Mayhew  v.  Locke.  7  Taunt.  63 
Maynard  ».  Beardsley,*7  Wend.  560 

Mayne  v.  Fletcher,  4  M.  &  II.  311  ;  9  B.  &  C.  382  .  5,  1 

Mayrant  v.  Richardson,  1  Xutt.  &  M.  347 
Mead,  In  re,  Ex  parte  Cochrane,  L.  R.  20  Eq.  282  ;    44  L.  J 
23  W.  R.  726  ;  32  L.  T.  508         .... 

v.  Daubigny,  Peake,  168  .  ... 

Meagher  v.  Moore,  3  Smith,  135  ;  in  error,  1  Taunt.  39 

Mears  v.  Griffin,  1  M.  &  Gr.  796  ;  2  Scott,  X.  R.  15      . 

Medhurst  v.  Balam,  cited  1  Siderfin,  397       .  .  .  .  .     300 

Meggs  v.  Griffith,  vel  Griffin,  Cro.  Eliz.  400  ;  Moore,  403         .  127,  165 

Mercer  v.  Sparks  (1586),  Owen,  51  ;  Xov.  35  .  .  .  .530 

v.  Whall,  5  Q.  B.  447  ;  14  L.  J.  Q.  B.  267         .  .  .      .     557 

Mercers'  Co.,  Ex  parte,  10  Ch.  D.  481 ;  48  L.  J.  Ch.  384  ;  27  W.  R.  424  .     366 
Merrier  v.  Cotton,   1  Q.  B.  D.  442  ;  46  L.  J.  Q.  B.  181  ;  24  W.  R.  566  ; 

35  L.  T.  79 549 

Merest  v.  Harvey,  5  Taunt.  442         .....  85,  311 

Merivale  and  wife  v.  Carson,  3  Times  L.  R.  431  .  .  .      33,  50 

Merryweather  v.  Xixan,  8  T.  R.  186  ;  2  8m.  L.  C.  546  ;  (8th  ed.)  .  8,  410 

Metropolitan  Saloon  Omnibus  Co.  v.  Hawkins,   4  H.  &  X.   87,  146  ;  28 

L.  J.  Ex.  201  ;  5  Jur.  X.  8.  226  ;  7  W.  R.  285  ;  32  L.  T.  Old  S.  281,       20 

30,  416,  417,  546,  554 
Mickelthwaitc  v.  Fletcher,  27  W.  R.  793  .  .  .  .      .     502 

Middleton  v.  Croft,  Cas.  temp.  Hardwicke,  57,  326  ...     450 

Mildmay  et  ux.  r.  Standish,  1  Rep.  177b  ;  Cro.  Eliz.  34  ;   Moore,  144  ; 

Jenkins's  Centuries,  247         .  .  .  .  •  •      •     143 

Milissich  v.  Lloyds,  46  L.  J.  C.  P.  404  ;  36  L.T.  423  ;  13  Cox,  C.  C.  575  .     255 

253,  258,  263 


C45) 


xlvi 


TABLE  OF  CASES. 


[*xlvi.] 


(The  paging  refers  to  the  [*]  pages  ) 


003  ;  55  L.  J.  (J.  B.  445  ;  34 


L.  .1.  C.  P 


125  . 
50  L. 


84  ;  22  W.  R. 
70,  91,  111 


J.   Q.  B.   214  ;   29  W.  R. 


53  E 


Mil-My. 

Millar  d.  Taylor  (1769),. 4  Burr.  2303,  2417 

r.  Toulmin  (C.    A.),    17  Q.   B.   D. 

W.  it.  695       .... 

Miller  v.  Buckdon,  2  Buls.  10. 

v.  David,    L.  It.  9  C.  P.  118  ;  43 

30  L.  T.  58 

v.  Hope,  2  Shaw,  Sc.  App.  ('as. 

Millington  d.  Loring,  (i  Q.  B.  I).   190  ; 

207  ;  43  I,.  T.  657  ;  45  J.  P.  268 
Mills  and  wife   r.  Spencer  and  wife  (1817),  Holt  N.  1 
Milman  v.  Pratt,  2  B.  &  C.  480  ;  3  D.  &  It.  728 
Mines  Royal  Society  v.  Maguey,  10  Ex.  489  ;  24  L.  J.  Ex.  7 
Minors  e.  Leeford,  Cro.  Jac.  114 
Mitchell  v.  Brown,  3  Inst.  107  ;  1  Roll.  Abr.  70      . 

v.  Tarbutt  and  others,  5  T.  It.  049 

Mogul  Steamship  Co.  v.  M'Gregor,   Gow  &  Co.,   15  Q.  B. 

L.  J.  Q.  B.  540  ;  53  L.  T.  268  ;  49  J.  P.  040  ;  5  Asp.  M 
Cox,  C.  C.  740 

Moises  r.  Thornton,  8  T.  R,  303 

Moody  ».  Steward,  L.  R.  0  Ex.  35  ;  40  L.  J.  Ex.  25  ;  19  W. 
L.  T.  405    

Moon  v.  Towers,  8  C.  B.  N.  S.  011         . 

Moone  v.  Rose,  L.  It.  4  Q.  B.  480  ;  38  L.  J.  Q.  B.  230 

Moor  v.  Roberts,  3  C.  B.  N.  S.  671  ;  20  L.  J.  C.  P.  240 

(Sir  George)  v.  Foster,  Cro.  Jac.  05     . 

Moore  v.  Meagher  (in  error),  1  Taunt.  39  ;  (below)  3  Smith,  135 

V.  Terrell  and  others,  4  B.  &  Ad.  870  ;1N.&  M.  559  . 

Mordaunt  v.  Mordaunt,  39  L.  J.  Prob.  &  Matr.  59  . 

More  v.  Bennett  (1872),  48  N.  Y.  R.  (3  Sickel),  472       . 
Morgan  v,  Lingen,  8  L.  T.  800 

Morris  v.  Freeman  and  wife,  3  P.  D.   05  ;  47  L.  J.  P.  D.  &  A. 
W.  R.  62  ;  39  L.  T.  125 

v.  Langdale,  2  B.  &  P.  284     . 

Morrison  v.  Belcher,  3  F.  &  F.  614 

r.  and  another  v.  Karmer  and  another 

Scott,  524;  3  Hodges,  108    . 

Morrow  r.  Belcher  and  others,  4  B   &  C 
Mortimer  v.  M'Callan,  6  M.  &  W.  58 
Moscati  v.  Lawson,  7  C.  &  P.  35 

Mot  et  ux.  v.  Butler,  Cro.  Car.  236    .... 
Mott  v.  Dawson,  46  Iowa,  533 
Mountney  v.  Watton,  2  B.  &  Ad.  073 
•  Mulkern  v.  Ward,  L.  It.  13  Eq.  019  ;  41  L.  J.  Ch.  404;  20  L 


PAG 

340 

580 
122 

532 

188 


542 

100,  314.  321 

.       .      Ill 

.     301 

108,  119,  123 

.      96 

.       .     510 


470 
407 


R.  101 


54 
15 
147, 
66, 
23 
585, 
412, 


15,  89, 

.     28, 
209, 

.     22, 


343 

558 

588 
413 
502 
548 

72 
300 
538 
400 
105 

21 


79; 
372, 


27 
401, 


81,  83,  110,  328 
.      .       50 


704 


Bing.  N 
32, 


B.  549  ;  44  L.  J. 


L.  J.  Q. 

.     185, 


Mullet  v.  Ilulton,  4  Esp.  248 

Mulligan  v.  Cole  and  others,   L.   R.  10  Q. 

33  L.  T.  12;  39  J.  P.  805 
Mulock,  Be,  33  L.  J.  Pr.  &  Matr.  205  ;  10  Jur.  N.  S.  1188 

27S       ....... 

Minister  v.  Cox,  1  Times  L.  It.  542    . 
v.  Lamb   (C.    A.),    11    Q.    B.  D.  588  ;    52 

W.  It.  243  ;  49  L.  T.  252  ;  47  J.  P.  805       . 
Murdock  v.  Funduklian,  2  Times  L.  It.  215,  014     . 
Murphy  r.  Ilalpin,  Ir.  It.  8  C.  L.  127    . 
Murray  v.  McSwiney,  Ir.  It.  9  C.  L.  545  • 
Murray's  Case,   Hon".  Alex.,  1  Wilson,  299 
Murrey's  Case,  2  Buls.  200  ;  1  Vin.  Abr.  440     . 
Musgrave  v.  Bovey,  2  Str.  940         . 
Myers  v.  pefries,  Times,  July  23,  1877 
v.      3  Q.  B.  D.  95,  459  ;  4  Ex.  D.  170  ; 


C.  1 
51,  11 


;  4 

174, 


0, 
8,  317, 


99,  171, 
831       . 
314,  355, 


Q.  B.   153 
24,  117, 
13  W. 


B.    726 

188,  189: 


507, 
It. 

310, 
32 
190, 
203, 
52, 


48  L.    J. 


252, 
Ex.  446  ; 


539 

516 
504 
578 
123 

44 
173 

43 
358 
313 

572 

497 

522 

192 

230 
234 
518 
490 
124 
74 
262 


cm 


TABLE  OF  GASES.  xlvii 

(The  paging  refers  to  the  [*]  pages.)  [  *  xlvii.] 


PAGE 


Nab4«Pf;  J   Ex   266  ;    27  W.  R.  191  ;    40  L.  T.  795  ;    5  Ex.  I).  15,  180; 

28  W.  R.  258,  406  ;  41  L.  T.  659  ;  42  L.  T.  137     .  .  .       .     369 


Naben  v.  Miecock  (1683),  Skin.  183  .  ....  96,110 

Naden  v.  Micocke  (1684),  3  Lev.  166  ;    Sir  T.  Jones,  235  ;    2   Venlr.  172  ; 

.     582 


583 


3  Salk.  325 
Napier  r.  Daniel  and  another,  3  Scott,  417  ;  3  Bing.  N.  C.  77  ;  2  Hodges, 
1 87  ..... 

Needham  ».  Dowling,'  15  L.  J.  C.  P.  9     .  .'         .  '         .  62,  84.  124,  190 

Nelson*.  Staff  (1618),  Cro.  Jac.  422  .  .  .  126,141,299 

Neve  v.  Cross,  Sty.  350     .  .  .  .  •  •  •  «5 

Newbold  v.  Bradstreel  &  Son,  57  Maryland,  38  ;  40  Amer.  Rep.  426        .     213 
Newman  v.  Bailey,  2  Chit.  665  .....         178,538 

v.  Zachery,  Aleyn,  3     .  .  .  .  ■  •     111 

Newsam  ».  Carr,  2  Stark.  69  .  .  .  .  •  •  ■     321 

Newton,  Ex  parte,  Be  Pigott,  4  E.  &  B.  869  ;  11  Cox,  C.  C.  311  .  .     606 

« Chaplin,  10  C.  B.  56  .  .  .  .  •  •       •     564 

».  Stubbs,  3  Mod.  71  .....  528 

and  wife  /'.  Boodle  and  others,  4  C.  B.  359  ;  18  L.  J.  C.  P.  73    .    372, 

398,  5si) 

Nichols  v.  Badger.Cro.  Eliz.  348  .  .  .  .  ■  .84 
r    Evens,  22    Ch.  U.  611  ;    52   L.  J.  Ch.  383  ;    31  W.  R.  412  ;  48 

L.  T.  06 B70 

Nicholson  d.  Jackson,  W.  N.  1876,  p.  38   .     .     .     .     •  543 

v.  Lyne,  Cro.  Eliz.  94  .  .  .  .  .       .       74 

Nixon  ».  Harvey,  8  Ir.  C.  L.  Rep.  446  ....  537 

Norburn   r.  Hilliam,  L.  R,  5  C.  P.  129  ;    39  L.  J.  C.  P.  183  ;    18  W.  R. 

602  ;  22  L.  T.  67 578 

Norman  v.  Johnson,  29  Beav.  77  .  .  .  .  •     367 

Norris  fl.  Smith,  10  A.  &  E.  188  .  .  .  .  .         .     518 

Northampton's  (Earl  of)  Case,  12  Rep.  134  127.  136,  163,  164,  165,  175 

North  London  Ry.  Co.  v.  Gt,  N.  Rv.  Co.,  11  Q.  B.  D.  30  ;  52  L.  J.  Q.  B. 

380  ;  31  W.  R.  490  ;  48  L.  T.  695 360 

Nutt's  (Elizabeth)  Case,  Fitzg.  47  .  1  Barnard.  306      .  .  .    162,  414 


O'Brien,  Ex  parte,  12  L.  R.  Ir.  29  ;  15  Cox,  C.  C.  180  385,  438,  481,  602k 

o.  Bryant.  16  M.  &  W.  168  ;  16  L.  J.  Ex.  77  ;  4  D.  &  L.  341      .     173 

o.  Clement,  15   M.  &   W.   435;    15  L.    J.    Ex.285;    3  D.  &  L. 

676  ;  10  Jut.  395       .  .  .  .19,  270,  323 

v.      16    M.   &  W.    159  ;    16    L.    J.   Ex.    76 :  4  D.  &  L. 

343,  563 21,  23,  111,  131 

Oddy  d.  Lord  George  Paulet,  4  F.  &  F.  1009  .  .  .81,  231,  289 

Odger  v.  Mortimer,  28  L.  T.  472  .....      52.582 

O'Donoghue  ».  Hussey,  Ir.  R.  5  C.  L.  121  .  .        52,  232,  233,  285 

Ogden  o.  Turner  (1705),  Holt,  40  ;  6  Mod.  101 ;  2  Salk.  696  54,  56,  61,  86 

O'Hanlon  v.  Myers,  10  Rich.  128  .  .  .  .  .       .      61 

O'Keefe  v.  Cardinal  Cullen,  Ir.  R.  7  C.  L.  319        .  .  .  .     540 

D'Kelly  v.  Harvey,  15  Cox,  C.  C.  435    .  .  .  .  .       .     380 

Oldham  v.  Peake,  2  Wm.  Bl.  359  ;  Cowp.  275        .        55,  58,  96.  121,  126,  325 
Oliver  v.  Lord  Wm.  Bentinck.  3  Taunt.  456  .  .      189,  198,  217,  259 

Olmsted  ».  Miller,  1  Wend.  506  .  .  .  .  .  .       .     301 

Onslow  v.  Home,  2  W.  Bl.  750  ;  3  Wils.  177         .  .    72,  73,  241,  295,  298 

Onslow's  Case,  9  Q.  B.  219  ;  12  Cox,  C.  C.  358  .  .     497,  501,  512 

Orpwood  v.  Barkes,  orParkes,  4  Bing,  261  ;  12  Moore,  492        .       81,  115,  565 
Osborn  v.  Poole,  1  Ld.  Raym.  236     .  .  .  .  .  .     127 

(47) 


xlviii  TABLE  OF  CASES.. 

[*xlviii.]  (The  paging  refers  to  the  [*]  pages.) 

Ow-Pet.  PAGE 

Owens  r.  Woosman,  L.  R.  3  Q.  B.  469  ;  9  B.  &  S.  243  ;   37  L.  J.   Q.  B. 

L59 ;  16  W.  R.  932  ;  1'8  L.  T.  357    .  .  .  .  .  528 

Oxford  et.  ux.v.  Cross  (1599),  4  Rep.  18       .  .  .  .  00,86 


Padmore  v.  Lawrence,  11  A.  &  E.  380  ;  3  P.  &  D.  200  ;    4  Jur.  458  ;  4 

J.  P.  42  .  .  .  .  .  .  .        222,  224,  289 

Palmer  v.  Boyer,  Owen,  17  ;  Cro.  Eliz.  342  ....       75 

■     v.  Concord,  48  N.  II.  211  .  .  .  .  44 

v.  Hummerston  (1883),  1  C.  &  E.  36  .  .  237,  278,  509 

v.  Roberts,  22  W.  R.  577,  ft. ;  29  L.  T.  403        .  .  .       .     528 

Pankhurst  v.  Hamilton,  2  Times  L.  R.  682  .  313,  547.  548,  577,  603 

v.      3  Times  L.  R.  500  .  .  .  43,241,464 

— —        r.  Sowler,  3  Times  L.  R.  193        .  .  .  381,382,652 

®.  Thompson,  3  Times  L.  R.  199       .  .  .  .       .     464 

v.  Wisjhton  &  Co..  2  Times  L.  R.  745     ....     547 

Pare  r.  Clegg  (1861)   29  Beav.  589  .  .  .  .  .     463 

Paris  v.  Levy,  9  C.  B.  N.  S.  342  ;  30  L.  J.  C.  P.  11  ;  7  Jur.  N.  S.  289  ;  9 

W.  R  71  ;  3  L.  T.  324  ;  S.  C.  at  Nisi  Prius,  2  F.  &  F.  71  32,  51,  187,  564 
Parkes  v.  Prescott  and  another,  L.  R.  4  Ex.  169  ;  38  L.  J.  Ex.  105  ;  17  W. 

R.  773  ;  20  L.  T.  537  .....         156,157,413 

Parkins  and  wife  v.  Scott  and  wife,  1  H.  &  C.  153  ;  31  L.  J.  Ex.   331  :  8 

Jur.  N.  S.  593  ;  10  W.  R.  562  ;  6  L.  T.  394     .  .      168,  304,  326,  329. 

331.  332,  333 
Parmiter  v.  Coupland  and  another,  6  M.  &  W.  105  ;    9  L.  J.  Ex.   202  ;    4 

Jur.  701  .....  .    26,  40,  42,  95.  362,  578 

Parret  v.  Carpenter,  Nov,  64  ;  Cro.  Eliz.  502  .  .  .  .74 

Parry,  Ex  parte,  41J.  P.  85        ......    431,434 

Parsons  v.  Sunrev,  4  F.  i  F.  247      .  246,289 

v.  Tinling,  2  C.  P.  D.  119  ;  46  L.  J.  C.  P.  230  ;  25  W.  R.  255  ;  35 

L.  T.  851        .  .  .  .  .  .  .  .366 

Pashler  v.  Vincent,  8  Ch.  D.  825  ;  27  W.  R.  2  .  .  .   •         .       .     500 

Pasquin's  (Anthony)  Case,  cited  1  Camp.  351  ....     318 

Passie  ».  Mondford,  Cro.  Eliz.  747  .  .  .  .  56 

Patch  v.  Tribune  Association,  38  Hun.  (45  N.  Y.  Supr.  Ct.),  368  .  .     100 

Pater,  In  re,  5  B.  &  S.  299  ;  33  L.  J.  M.  C.  142  ;  12  W.  R.  823  ;  10  L.  T. 

376;. 28  J.  P.  327,  612  .  .  .  .     495 

v.  Baker,  3  C.  B.  831  ;  16  L.  J.  C.  P.  124  ;  11  Jur.  370  139,  144,  273 

Paterson's  Case,  1  Brown  (Scotch),  629  .  .  .  .  .       .     446 

Patti^on  v.  Jones,  3  M.  &  R.  101  ;  8  B.  &.  C.  578  ;  3  C.  &  P.  383   203,  209,  274 
Pawley  v.  Scratton,  3  Times  L.  R.  146         ....  140,144 

Payne  v.  Beuwmorris,  1  Lev.  248       .....  74,  299 

v.  Courthope,  20  Sol.  J.  724         .  .  .  .  .       .     539 

Peacham's  Case,  Cro.  Car.  125  ;  2  Cobbetfs  St.  Tr.  870      .  .     477 

Peacock  v.  Reynal  (1612),  2  Brownlow  and  Goldesboroutdi,  151  ;  16  M.  & 

W.  825   n.  .  .  .  .  .  .  217,  274,  522 

Peake  r.  Oldham,  Cowp.  275  ;  2  W.  B.  L.  959  55,  58,  96,  121,  126,  325 

v.  Pollard,  Cro.  Eliz.  214  .  .  .  .  .  .96 

Pearce  v.  Ornsby,  1  M.  &  Rob.  455        ...  98,  277,  310,  567 

v.  Rogers,  2  F.  &  F.  137         .  .  .  .  .  .529 

Peard  v.  Jones  (1535),  Cro.  Car.  382        .  .  .  .  .       70,  75 

Pearson  v.  Lemaitre,  5  M.  &  G.  700  ;  6  Scott,  N.  R.  607  ;    12  L.  J.  Q.  V.. 

253  ;  7  Jur.  748  ;  7  J.  P.  336      .  98,  276,  277,  278,  280,  310,  317,  579 

Pemberton  v.  Colls,  10  Q.  B.  461  ;  16  L.  J.  Q.  B.  403  ;  11  Jur.  1011        .73,  75 
Penfold  ».  Westcote,  2  Bos.  &.  P.  N.  R.  335  .  .  .  .108 

Pennyman  r.  Rabanks,  Cro.  Eliz.  427  ;  1  Via.  Abr.  551  .  .     143 

Peppiatt  and  wife  v.  Smith,  33  L.  J.  Ex.  2-\9  .  .  .  .546 

Perceval  (Lord  and  Ladv)  r.  Phipps,  2  Yes.  &  B.  19     .  .  .       .     347 

Perrv's  (Captain)  Case,  cited  2  Atk.  469  ;  2  Dick.  794  .  .     496 

Peterborough  (Lord)  v.  Williams,  2  Show.  506  ;  or  i.i  Butts'  ed.  650  .     137 

(48) 


TABLE  OF  CASKS. 


xlix 


(The  paging  refers  to  the  [*]  pages.) 


[*  xlix.] 


J.  Q.  B.  338  ;  28  W.  R 

J.  Q.  B.  736;  38  W.  R 

.74, 
448, 
345  ; 
.    153, 
07.   76,  432, 


T.  295 


.   408, 
50  L.  J.  Ch.  406  ;  29 


Pet— Pro. 

Peters  and  another  v.  Edwards  and  another,  3  Times  L.  K.  433    . 
Pettibone  v.  Simpson,  66  Barb.  493        .  .  .  .  ■       ■ 

Pharmaceutical  Society  v.   London  and  Provincial  Supply  Association, 
4  Q.  B.  D.  313;  48  L.  J.  Q.  B.   :;s7  ;  37  W.  R.  709  ;  40 
L.  T.  584 

(C.  A.)  5  Q.  B.  D.   310  ;  49  L 

608  ;  42  L.  T.  569 

(H.  L.)  5  App.  Cas.  857  ;  49  I 

957  ;  43  L.  T.  389  . 
Philips  (B.  D.),  v.  Badby  (1582),  cited  4  Rep.  19 
Phillimore  v.  Machon,  1  P.  D.  481  . 

Phillips  v.  Barnet,  1  Q.  B.  D.  436  ;  45  L.  J.  Q.  B.  277  ;  24  W.  R 
34  L.  T.  177     . 

/•.  Jansen,  2  Esp.  624 

v.  Routh,  L.  R.  7  C.  P.  287      . 

Pickering  v.  Stephenson,  L.  R.  14  Eq.  322  ;  41  L.  J.  Ch.  493  ;  20  W.  R. 

654^26  L.  T.  608  .  .  .  .  .  .        373, 

Picton  v.  Jackman,  4  C.  &  P.  357  ....        206, '.Ml, 

Pierce  v.  Ellis,  6  Ir.  C.  L.  R.  55        ..  .  .  156,  176,  241,  246, 

Pierepoint's  Case,  Cro.  Eliz.  308  ..... 

Pierpoint  v.  Cartwright,  5  C.  P.  D.  139  ;  28  W.  R.  583  ;  42  L. 
Pigott.  R,   Ex  parte  Newton,  11  Cox,  C.  C.  311  ;  4  E.  &  B.  86 
Pines  (Hugh)  Case,  Cro.  Car.  117  .... 

Pinero  v.  Goodlake,  15  L.  T.  676       .... 

Pisani  v.  Lawson,  6  Bing,  N.  C.  90  ;  5  Scott,  418 

Pitt  v.  Donovan,  1  M.  &  S.  639 

Plating  Co.  v.  Farquharson  (C.  A.),  17  Ch.  D.  49 

W.  R,  510  ;  44  L.  T.  389  ;  45  J.  P.  568      . 
Plunket  r.  Gilmore,  Fortescue,  211  .... 
Plnnkett  v.  Cobbett,  2  Selw.  N.  P.  1042  ;  5  Esp.  13G. 
Pocock  v.  Nash,  Comb.  253   ..... 
Poe  1).  Mondford,  Cro.  Eliz.  620  ... 

Poe's  (Dr.)  Case,  1  Vin.  Abr.  440  ;  cited  in  2  Buls.  206 
Poland  v.  Mason  (1620),  Hob.  305,  326   . 
Pollard,  I/i  re,  L.  R.  2  P.  C.  106  ;  5  Moore,  P.  C.  C.  N.  S 

v.  Lyon,  1  Otto  (91  U.  S.),  225 

Pool  v.  Sacheverel,  1  P.  Wms.  675    .... 

Poole  v.  Whitcomb,  12  C.  B,  N.  S.  770 

Pope  v.  Curl,  2  Atk.  342 

Popham  v.  Pickburn,  7  H.  &  N.  891 

179  ;  10  W.  R.  324  ;  5  L.  T.  846  ; 
Poplett  v.  Stockdale,  Ry.  &  Moo.  337 
Potter  v.  Chambers,  4  C.  P.  D.  457  ;  • 
Powell  v.  Jones,  1  Lev.  297 
Power  v.  Shaw,  1  Wils.  62     . 
Pratt///  re.  7  A.  &  E.  27  . 

v.  Gardner,  2  Cushing  (Mass.)  63 

Preston  v.  De  Windt,  Times,  July  7th,  1884       . 

v.  Pinder,  Cro.  Eliz.  308       . 

Price  v.  Harris,  10  Bimr.  331        . 

v.  Hutchison,  L.  R.  9  Eq.  534  ;  18  W.  R.  204 

v.  Jenkins,  Cro.  Eliz.  865    . 

Prickett  v.  Gratrex,  8  Q.  B.  1020       . 

Pridham  v.  Tucker,  Yelv.  153  ;  Hob.  126  ;  Cart,  214 

Prinne  v.  Howe,  1  Brown  Pari.  C.  64 

Prior  and  another  v.  Wilson,  1  C.  B.  N.  S.  95    . 

Proby  ».  Marquess  of  Dorchester,  1  Lev.  148 

Procter  v.  Tyler,  3  Times  L.  R.  282 

Procter  v.  Raikes  and  another,  3  Times  L.  R.  229   . 

v.  Smiles,  55  L.  J.  Q.  B.  467 

v.    2  Times  L.  R.  474 


PAGE 

577 
305 


122 


111 


;  31  L.  J.  Ex.  133  ;  8  Jur.   N.  S. 
26  J.  P.  646       .  .       166,  176, 


L.  J.  C.  P.  274  ;  27  W.  R.  414 


7G 


55, 


"1,  72, 


417 

417 

417 
121 
449 

398 

:»<)<) 

550 

610 
383 
368 
59 
587 
606 
477 
257 
525 
143 

496 

13 

278 

74 

77 

124 

57 

504 

305 

496 

579 

347 

268 

7 

371 

,  76 

86 
599 
189 

57 
124 
582 
495 
529 
50!) 
113 
241 

81 
137 
556 
551 
551 
555 


(49) 


TABLE  OF  CASES. 


[*].]  (The  paging  refers  to  the  [*]  pages.) 

Pro— R.  PAGE 

Proctor  v.  Webster,  16  Q.  B.  D.  112  ;  55  L.  J.  Q.  B.  150  ;  53  L.  T.  765; 

2  Times  L.  R.  103       .  .  .  .  .  .        186,  193,  227 

Prosser  v.  Rowe,  2  C.  &  P.  422 178 

Proud  v.  Hawes,  Cro.  Eliz.  171  ;  Hob.  140 76 

Prowse  v.  Wilcox,  3  Mod.  163  .  .  .  .  .  .71 

Prudential  Assurance  Co.  v.  Knott,  L.  R.  10  Ch.  142  ;  44  L.  J.  Cb.  192  ; 

23  W.  R.  249  ;  31  L.  T.  866  .    345,  346,  349,  351,  357,  359,  361,  363 

Prudbomme  ».  Fraser,  2  A.  &  E.  645  ....  369 

Pudsey  Coal  Gas  Co.  v.  Corporation  ofg  Bradford,  L.  R.  15  Eq.  167  ;  42 

L.  J.  Ch.  293  ;  21  W.  R.  286  ;  28  L.  T.  11  .  .  .  .      .     147 

Punch  v.  Boyd  and  others,  16  L.  R.  Ir.  476  ...         346,  364 

Pureed  v.  Sowler,  1  C.  P.  D.  781  ;  (C.  A.)  2  C.  P.  D.  215  ;  46  L.  J.  C.  P. 

308  ;  25  W.  R.  362  ;  36  L.  T.  416  ;  41  J.  P.  789      40,  41,  47,  166,  176,  243 

267,  378 
Purdy  v.  Stacey,  5  Burr.  2698  ......      72 

Purnell  v.  G.  W.  Ry.  Co.  and  Harris  (C.  A.),  1  Q.  B.  D.  636  ;  45  L.  J. 

Q.  B.  687  ;  24  W.  R.  720,  909,  35  L.  T.  605  .  .  .  .  582 
Pybus  v.  Scudamore,  Arn.  464  .  .  .  .  .  557 
Pye  v.  Wallis  (1658),  Carter,  55    . 65 


Quartz  Hill,  &c.  Co.  v.  Beall  (C.  A.),  20  Ch.  D.  501  ;  51  L.  J.  Ch.  874  ; 

30  W.  R,  583  ;  46  L.  T.  746        .  .  .  240,  244,  342,  345,  363 

Quin  v.  Hession,  4  L.  R.  (Ir.)  35  ;  40  L.  T.  70    .  .  .      233,  319,  543 


77, 

67,  69,  82, 
Charley,  96 


28, 
142, 

431, 


Rainy  v.  Bravo,  L.  R.  4  P.  C.  287  ;  20  W.  R.  873  ;  36  J.  P.  788    529,  563, 

v.  Justices  of  Sierra  Leone,  8  Moo.  P.  C.  C.  47        .  503, 

Ram  v.  Lamley,  Hutt.  113 

Ramadge  v.  Ryan,  9  Bing.  333  ;  2  M.  &  Sc.  421      . 

Ramsay,  In  re,  L.  R.  3  P.  C.  427  ;  7  Moo.  P.  C.  C.  N.  S.  262 

Ramsdale  v.  Greenacre,  1  F.  &  F.  61 

Ramsden  v.  Brearley,  33  L.  T.  322 ;  W.  N.  1875,  p.  199  ;  1 

Bitt.  Addenda  ;  20  Sol.  J.  30     . 
Ratcliff  v.  Michael  (1614),  Cro.  Jac.  331 
Raven  v.  Stephens  and  Sons,  3  Times  L.  R.  67 
Ravenhill  v.  Upcott,  33  J.  P.  299  ..  . 

Rawlings  et  ux.  v.  Norbury,  1  F.  &  F.  341  . 
Rea,  Be,  9  Cox,  C.  C.  401  ;  17  Ir.  C.  L.  R.  584 

In  re  John,  2  L.  R.  Ir.  429  ;  14  Cox,  C.  C.  139 

4  L.  R.  Ir.  345  ;  14  Cox,  C.  C.  256      . 
Read  v.  Ambridge,  6  C.  &  P.  308      . 

and  Huggonson,  lie,  Roach  v.  Garvan,  2  Atk.  469  ;  2  Dick.  794 

131,  338,  351,  494,  496, 

Read's  Case,  Cro.  Eliz.  645 127, 

Rearick  ».  Wilcox,  81  111.  77 

Redford  v.  Birley,  3  Stark.  103    . 

Redman  v.  Pyne,  1  Mod.  19  . 

Redston  v.  Eliot,  Cro.  Eliz.  638  ;  1  Roll.  Abr.  49 

Reeve  v.  Holgate  (1672),  2  Lev.  62    . 

Reginald's  Case,  (1640),  Cro.  Car.  563      .  .  .  .  .     79, 

Remington  v.  Congdon  and  others,  2  Pick.  (19  Mass.),  310  .         237, 

Rendall  v.  Hayward,  5  Bing.  N.  C.  422 

Republic  of  Liberia  v.  Rove,  1  App.  Cas.  139  ;  45  L.  J.  Ch.  297  ;  24  W.  R. 

697  ;  34  L.  T.  145       * 

Rested  and  another  v.  Steward,  W.  N.  1875,  p.  249  ;  1  Charley,  89  ;  Bitt. 

65 ;  20  Sol.  J.  140  ;  60  L.  T.  Notes,  128 

Revis  v.  Smith,  18  C.  B.  126  ;  25  L.  J.  C.  P.  195  ;  2  Jur.  N.  S.  614        191, 
R  v.  Abingdon  (Lord),  1  Esp.  226  .  155,  186,  242,  265,  275,  433, 

—  v.  Adams  (1842),  Gloucester  Assizes  ....         445, 

(50) 


564 
504 
193 
583 
503 
531 

552 
119 
117 
323 
110 
597 
511 
507 
108 
124 
520 
165 
323 
380 
67 
121 
125 
125 
243 
584 

499 

538 
193 
435 
459 


TABLE  OF  CASES.  li 

(The  paging  refers  to  the  [*]  pages.)  [*  li.] 

■R.  PAGE 

R.  9.  Aickles,  1  Beach,  330     .  .  .  ...  .  .     564 

—  v.  Aikenhead,  Maclaurin's  Crim.  Cas.  12  ;  3  Mer.  382  n.      .  .  440 

—  v.  Almc  and  Nut,  3  Salk.  224  ;  1  Lord  Raym.  486  .  .  .     425 

—  v.  Almon,  5  Burr.  2680  .  ...  .  .  .     162,  414,  480 

—  v.    Wilmot's  Notes  of  Opinions  and  Judgments,  p.  253        .    495,503 

—  v.  Amphlit.  4  B.  &  C.  35  ;  6  D.  &  R.  125  .  .  .     152,  154,  561 

—  v.  Annet,  3  Burn.  Ec.  L.  386  (9th  edition)  ;  1  Wm.  Bl.  395  .444 

—  v.  Archer,  2  T.  R.  203  n.         .  .  .  .  .  .      .     608 

—  v.  Aspinall,  2  Q.  B.  D.  48  ;  46  L.  J.  M.  C.  145  ;  26  W.  R.  283  ;  36  L.  T. 

297  605 

—  v.  Atwood,  Cro.  Jac.  421  ;  2  Roll.  Abr.  78  446,  450,  451 

—  v.  Aunger,  12  Cox,  C.  C.  407  ;  37  J.  P.  645  .  .  .     612 

—  v.  Bailie,  Holt,  N.  P,  312  n 429 

—  o.  Baker,  1  Mod.  35  505 

—  v.  Baldwin,  8  A.  &  E.  168      .  .  .  .  .  .       .     611 

—  v.  Barker,  1  F.  &  F.  326     .  .  .  .  .  .  .     600 

—  v.  Barnard,  Ex  parte  Lord  R.  Gower,  43  J.  P.  127       .       133,  436,  567,  612 

—  v.  Baxter  (1685),  3  Mod.  69      .  .  .  .  .  .       .     102 

—  v.  Bedford  (1714),  cited  in  2  Str.  789  ;  Dig.  L.  L.  19,  121  483,  486,  692 

—  v.  Beere,  12  Mod.  219  ;  Holt,  422  ;  Carth.  409  ;  2  Salk,  417,  646  ;  1  Ld. 

Raym.  414 153,  434,  483,  485,  559,599 

—  9.  Benfield  and  others,  2  Burr.  980  ...  429,  594,  606 

—  v.  Bickerton,  1  Stra.  498    .  .  .  .  .  -  .612 

—  v.  Birmingham  and  Gloucester  Ry.  Co.,  3  Q.  B.  223;    10  L.  J.  M.  C 

136  .  .  .  .  .  .  •  .  .       .     597 

—  v.  Birt  and  others,  5  C.  &  P.  154  .  .  .  .  .  .380 

—  v.  Bliss  (Clerk),  K.  B.  MSS.  (1719),  Dig.  L.  L.  122  .  .    483 

—  v.  Bolton,  1  Q.  B.  73 507 

—  v.  Boucher,  1  F.  &  F.  486 564,  600 

—  v.  Boxall,  4  A.  &  E.  513     .  .  .  .  .  .  .598 

—  v.  Bradlaugh  and  Besant,  2  Q.  B.  D.  569  ;  46  L.  J.  M.  C.  286        .        5,  606 

—  a.         (C.  A.),    3  Q.  B.   D.  607 ;  48  L.  J.  M.   C. 

—  v.  5  ;  26  W.  R.  410  ;  38  L.  T.  118  ;    14  Cox, 

C.   C.   68  ;    42  J.    P.   325,   372,   740  ;    43 

J.  P.  125  .  .  472,  490,  593,  606 

—  v.         and   others,    Tyler's   Case  (No.    1),    Times,   Nov.    7th, 

1882  .  .  .  .384 

—  v.  :  (No.  2),  31  W.  R.  229 ;   47  L.  T. 

477  ;  47  J.    P.   71 ;    15  Cox, 

C.  C.  156  .  .        387,  595 

—  9.  (No.  3);  15  Cox,  C.  C.  217        415,  434, 

436,  595,  602 

—  v.  Brewster  (1663),  Bis;.  L.  L.  76  .  .  "  .  486,  487 

—  v.  Brigstock,  Cole  on  Cr.  Inf.  p.  23  ;  6  C.  &  P.  184         .  .        431,  575 

—  v.  Brooke,  2  T.  R.  190  .  .  .  .  .  ..63 

— «.     7  Cox,  C.  C.  251  .  .  .  .  .        432,  594 

—  9.  Brown  (Dr.),  11  Mod.  86  ;  Holt,  425  .  .  .21,  116,  478,  487 

—  v.  Budd,  5  Esp.  230 601 

—  9.  Bunts,  2  T.  R.  683 608 

—  9.  Burdett,  4  B.  &  Aid.  95,  314      .        154,  313,  434,  436,  442,  483,  484,  485, 

518,  593,  594,  600,  608 

—  v.      Thos.,  Hallam's  Middle  Ages,  c.  viii  .  .  .     477 

—  v.  Burford,  1  Ventris,  16  .  .  .  .  .  506 

—  v.  Burks,  7  T.  R.  4  .  .  .  .  .  .  .594 

—  v.  Burn,  7  A.  &  E.  190 506,  612 

—  9.  Canning,  19  St.  Tr.  370  ......     600 

—  v.  Canterbury,  Archbishop  of,  11  Q.  B.  649  ;  17  L.  J.  Q.  B.  268  .     450 

—  v.  Carden,  Sir  Robert,  5  Q.  B.  D.  1  ;    49  L.   J.  M.   C.    1  ;    28  W.   R. 

133  ;  41  L.  T.  504  ;  14  Cox,  C.  C.  359  ;  44  J.  P.  119        42,  385,  439,  591 

—  v.  Carlile,  1  Cox,  C.  C.  229     .  .  .  .  .  .     169,  472 

—  9.      Mary  (1819),  3  B.  &  Aid.  167        .  .  254,  404,  432,  444,  460 

— .  v.  Carlile,  Richard,  3B.&  Aid.  161  ;  1  Chit.  451        .        432,  443,  466,  529 

(51) 


]ii  TABLE  OF  CASES. 

[*Iii.]  (The  paging  refers  to  the  [*]  pages.) 

R.  PAGE 

R.  v.  Carlile,  Richard,.  4  C.  &P.  415  .  .  .  .  .487 

—  ®.  Casey,  13  Cox,  C.  C.  310,  614  .....    488,597 

—  v.  Castro  and  others,  L.  R.  9  Q.  B.  219 ;  12  Cox,  C.  C.  358         497,  501,  512 
-r-  v.  Caudwell,  2  Den.  C.  C.  372,  n  .  .....     607 

—  v.  Cavendish,  Hon.  F.,  2  Cox,  C.  C.  175        .....    597 

—  «.  Chichester,  17  Q.  B.  504,  n.       ......     608 

—  v.  Chipping  Sodburv,  3  N.  &  M.  104  .  .  .  .       .     598 

—  v.  Christian,  12  L.  J.  M.  C.  26       .  .  .  .  .  .599 

—  v.  City  of  London,  E.  B.  &  E.  122  n.  .  .  .  .      .    416 

—  v.  Clement,  4  B.  &  Aid.  218  ;  11  Price,  69  254,  264,  339,  496,  498,501 

—  v.  Clendon  (1712),  cited  2  Sir.  789  .....     446 

—  v.  Clerk,  1  Barnard.  304  ....        131,  411,  435,  480 

—  v.  Clouter,  Cole  on  Cr.  Inf.,  p.  22      .  .  .  .  .  431 

—  ©.  Cobbett  (1804),  29  Howell's  St.  Tr.  1  10,  483,  484 

—  v.  Cockshaw,  2  N.  &  Man.  378      .  .  .  .  .  .613 

—  v.  Coghlan,  4  F.  &  F.  316 24,  81,  110,  426 

—  v.  Cohen  and  Jacob,  1  Stark.  516  .....     605 

—  v.  Collins,  9  C.  <fc  P.  456 482,  483,  484,  485 

—  v.  Cooper,  8  Q.  B.  533  ;  15  L.  J.  Q.  B.  206  ;  1  Cox  C.  C.  266  ;  10  J.  P. 

631         .  .  .  .  .  .  '  23,  156,  334,  415,  434,  599 

—  v.  Cork,  JJ.  of,  10  L.  R.  Ir.  1  ;  15  Cox,  C.  C.  78  .  .  .     488 

—  v.  Creevey,  1  M.  &  S.  273.  .  .  .     186,  242,  254,  265,  275 

—  v.  Critchley,  4  T.  R.  129.  n  .  .  .  .  .  .424 

—  v.  Cruse  et  ux.,  2  Moo.  C.  C.  53  ;  8  C.  &  P.  541        .  .  .       .     404 

—  v.  Curl,  2  Star.  788  ;  1  Barnard.  29  ...  .  449,  454,  471 

—  v.  Cutholl,  27  Howell's  St.  Tr.  642  ....       10,435 

—  v.  Darby,  3  Mod.  139  ;  Comb.  65  ;  Carth.  14     .  .  .     71,  423,  506 

—  v.  Davison,  4  B.  &  Aid.  329  .  .  .  .  .494 

—  v.  Dean  of  St.  Asaph,  3  T.  R.  428,    n.  ;  4  Dougl.  73  ;  21  St.  T.  1043  10,  424 

—  v.  De  Berenger,  3  M.  &  S.  67        .  .  .  .  .  .     425 

—  v.  D'Eon,  1  Wm.  Bl.  501  ;  3  Burr.  1514  ;  Dig.  L.  L.  88       .  .      .     430 

—  v.  Dewhurst,  5  B  &  Ad.  405  .....  .     599 

—  v.  Dodd,  2  Sess.  Cas.  33  .....  5,162,414 

—  v.  Dover,  2  Harg.  St.  Tr.  457  ;  6  Howell's  St.  Tr.  547    .  .  .     159 

—  v.  Draper,  3  Smith,  390.  .....  .429,612 

—  v.  Drury  and  others,  18  L.  J.  M.  C   189  ;  3  C.  &  K.  190  .  .     606 

—  v.  Duffy,  9  Ir.  L.  B.  329  ;  2  Cox,  C.  C.  45     .  .  .  .  438,  602 

—  v.  Duffy,  Gavan,  1  Cox,  C.  C.  282  .  .  •  .  .     686 

—  v.  Dugdale,    1  E.  &  B.  425  ;  22  L.  J.  M.  C.  50  ;  17  Jur.  546  ;  Dears. 

C.  C.  64 472 

—  v.  Eaton,  31  How.  St.  Tr.  927        .  .  .  .  .  .443 

—  v.  Edgar,  2  Sess.  Cas.  29  ;  5  Bac.  Abr.  199    .  .  .  .      .       97 
—  v.  Elwall,  Gloucester  Summer  Assizes,  1726         ....     443 

—  v.  Enes,  (1732),  Andr.  229  ;  4  Bac.  Abr.  Libel  A.  (2),  p.  452  .      .     230 

—  v.  Ensor,  3  Times  L.  R.  366  .  .  .  .  423,  595,  682 

—  v.  Evans,  3  Stark.  35     .  .  .  .  .  .  .      .     601 

—  v.    and  another,  8  Dowl.  451  ....        490,  502 

—  v.  Eve  and  Parlby,  5  A.  &  E.  780  ;  1  N.  &  P.  229     .  .  .      .612 

—  v.  Eyre,  Leeds  Assizes,  Times,  Nov.  6,  1880        ....     604 

—  v.  Farre,  1  Keb.  629      ......  73,  505 

—  v.  Faulkner,   2  Mont,  and  Ayr.   321  ;    2  C.  M.  &   R.    525  ;    1  Gale, 

210  .  .  .  .  .  .  .  495,  503 

—  v.  Felbermann  and  Wilkinson,  51  J.  P.  168  .  .  .  .      .     69S 

—  v.  Fisher  and  others,  2  Camp.  563  .....     200 

—  v.  Fleet,  1  B.  &  Aid.  379 250.  2(i0 

—  v.  Flowers.  44  J.  P.  377      .  .  .  .  .  .  36,  591 

—  v.  Foote,  10  Q.  B.  D.  378  ;  48  L.  T.  394  ;  15  Cox,  C.  C.  240  .      .     605 

—  v.    — -    Ramsay  and  Kemp,  Times.  March  2nd  and  6th,  18S3  .    446 

—  v.  Fonlkes,  1  L.  M.  &  P.  720  ;  20  L.  J.  M.  C.  196 598 

—  v.  Fowler  and  Sexton,  4  B.  &  Aid.  273      .  ....     607 

—  v.  Franceys,  2  A.  &  E.  49         .  .  .  .  .  .      .    611 

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TABLE  OF  CASES.  liii 

(The  paging  refers  to  the  [*]  puges.)  [*  Mi] 

PAGE 

Francis,  L.  R.  2  C.  C.  R.  128  ;  43  L.  J.  M.  C.  97  ;  22  W.  R.  663  ;  30 

I,  T.  503 276 

Francklin,  9  St.  Tr.  255  ;  17  Howell's  St.  Tr.  626     .  -.  481,483 

Fursey,  6  G.  &  P.  81  .  .  .  .  •  •       •     380 

Fussell  (1848),  3  Cox,  C.  C.  291  ...  483,  530,  593 

Garret,  Sir  Baptist  Hicks'  Case,  Hob.  215  ;  Popham,  139  .    116,  132 

Gathercole,  2  Lewin,  C.  C.  237        .  .  .  126,  423,  424,  453,  074 

Gilliam,  I  Moo.  &  Mai.  165       .....  495 

Girdwood,  1  Leach,  169  ;  East,  P.  C.  1120  .  .  .   600,  602 

Goldsmith,  L.  R.  2  C.  C.  R.  79  ;  42  L.  J.  M.  C.  94  ;  21  W.  It.  791  ; 
28  L.  T.  881  .  -  .  •  •  •  •     605 

—  v.  Goldstein,  Manasseh,  3  Brod.  &  B.  201  ;  7  Moore,  1  ;    10  Price,  88  ; 

It.  &  It.  C.  C.  473 529,  593 

—  v.  Gordon.  Lord  Geo.,  22  Howell's  St.  Tr.  177  .  .  .  430,493 

—  v.  Graniield.  12  Mod.  98  .  .  .  .  .       •     506 

—  v.  Grant  and  others,  5  B.  &  Ad.  1081  ;  3  K  &  M.  106     .  .  .     603 

—  v.  Gray,  10  Cox,  C.  C.  184      .  .  .  .  251,  252,  439,  496 

—  v. Andrew,  26  J.  P.  663      .  .  .  .  .  37,  258 

—  v.  Gregory,  8  A.  &  E.  907  ;  1  P.  &  D.  110  .  .  .      .    428 

—  v.  Grittin,  1  Sess.  Cas.  257  ......     424 

—  v.  Gutch,  Fisher,  and  Alexander,  Moo.  &  Malk.  433  .    5,  163,  414,  435 

—  v.  Hall,  1  Str.  416  .  .  .  .  .  .  446,  561,  503 

—  v. 1  Cox,  C.  C.  334 428 

—  v.  Halpin,  9  B.  &  C.  65  ;  4  M.  &  R.  8      .  .  .  .  .608 

—  v.  Harrison,  3  Keb.  841  ;  Ventr.  324  ;  Dig.  L.  L.  66  .  .    486,  487 

—  v.  Hart,  1  Wm.  Bl.  386       .  .  .  .  .  .         236,  243 

—  v.  Hart  and  .White,  30  How.  St.  Tr.  1168,  1345  ;  10  East,  94  .       .     493 

—  v.  Harvey  and  Chapman,  2  B.  &  C.  257  .  .  .  433,  480,  603 

—  v.  Haswcl land  Bate,  1  Dougl.  387     .....     561,612 

—  v.  Hatfield,  4  C.  &  P.  244 431 

—  v.  Hetherington,  5  Jur.  529  ;  5  J.  P.  496        .  .  .  .  445,  607 

—  v.  Hicklin,  L.  R.  3  Q.  B.  360  ;    37  L.  J.  M.  C.  89  ;    16  W.  R.  801  ;  18 

L.  T.  395  ;  11  Cox,    C.  C.  19  .  ,  .  .  4,  254,  445,  471,  474 

—  v.  Higgins  (1801),  2  East,  5      .  .  .  .  .  .60,  425 

—  v.  Hobhouse,  2  Chit.  210   .  .  .  .  .  .  .     490 

—  v.  Hoggan,  Times,  Nov.  4th,  1880     .  .  .  .  .     597 

—  v.  Holbrook  and  others,  3  Q.  B.  D.  60  ;  47  L.  J.  Q.  B.  35  ;    26  W.  R. 

144  ;  37  L.  T.  530  ;   13  Cox,  C.  C.  650  ;  41  J.  P.    773  ;   42  J.  P.       > 
53  ;  43  J.  P.  38  .  .  .  .   159,  414,  415,  434.  602,  689 

4   Q.  B.  D.  42  ;    43   L.  J.  Q.  B.  113  ;    27  W.  R.  313:    39  L.  T.  536  ; 
14  Cox,  C.  C.  185  ...  7,  9,  159,  414,  415,  434,  602  689 

—  v.  Holland,  4  T.  R,  457      ......  596 

—  v.  Holmes,  12  Q.  B.  D.  23  ;  49  L.  T.  540      .  .  .  .       .     600 

—  v.  Holyoake,  Gloucester  Assizes,  1842      .  .  .  445,  453,  460 

—  v.  Hone,  Wm.,  1817    .  .  .  .  .  .  .       .     445 

—  v.  Holt,  5  T.  It.  436  ...  .  313,  433,  577,  601,  603,  607 

—  v. Thomas,  8  J.  P.  212    .  .  .  .  .  .       .     112 

—  v.  Hornbrook,  Selwyn's  N.  P.  12th  ed.  p.  1065  ;  13th  ed.  p.  1000         .     432 

—  v.  Home  (1777);  11  St.  Tr.  264  ;  Cowp.  672  ;  Howell's  St.  Tr.  651         .     97, 

101,  102,  483,  594,  614,  576 

—  v.  Hunt  and  Leigh  Hunt,  31  Howell's  St.   Tr.  408  ;    2  Camp.  583  ;    3 

Chit.  Cr.  L.  881 483 

—  v. and  others,  3  B.  &  Aid.  444         .  .  .  .  .598 

_  „.  ,  3  B.  &  Aid.  566  .  .  .  .  .       .     380 

—  v.  Hive,  Dig.  L.  L.  82        .  .  .  .  .  .  .444 

—  d.  Ingram,  1  Salk.  384  .  .  .  .  .  .       .     404 

—  v.  Jackson,  10  Ir.  L.  R.  120  .  .  .  .  .  .     431 

—  v.  James,  5  B.  &  Aid.  894 501 

—  v.  Jeffe,  15  Vin.  Abr.  89 .493 

—  v.  Jenour,  7  Mod.  400.  ......  425,  429 

—  v.  Jewell,  7  E.  &  B.  140  ;  26  L.  J.  Q.  B.  177      .  .  .  .     598 

(53) 


liv 


TABLE  OF  CASES. 


L*liv.] 

R. 

—  v. 

—  *. 

V. 

V. 

—  V. 

—  V. 

V. 


(The  paging  refers  to  the  [*]  pages. )t 

PA  OK 

Johnson,  Hon.  Robt.,  G  East,  58?, ;  2  Smith,  591  ;  29  How.  St.  Tr.  103    686 

(1805),  7  East,  65  ;  3  Smith  94'.  24  How.  St.  Tr.  103   .     483,  coo 

Jolliffe,  4  T.  R.  285 429 

495,  501 

.     595 

.     598 

69  •     480 

34 

.     587 

190,  431 

.       .     608 

.     428 

411,  434,  480,  638 

.     242 

174,  538,  576,  603 


Jones,  1  Stra.  185     . 

2  Camp.  132 

Joule,  5  A.  &  E.  539 
Kearsley,  Dig.  L.  L. 


J.   Q.  B.  470 


Kettle.  Brown  v.  Dorse,  17  Q.  B.  D.  761  ;  55  L 
W.  R.  776  ;  54  L.  T.  875  . 
v.  Kiernan,  7  Cox,  C.  C.  6  ;  5  Ir.  C.  L.  R.  171  |. 

r.  Kinglake,  W.  N.  1870,  p.  130 

v.  Kinnersley,  1  Wm.  Bl.  294       . 

v.  Knell,  1  Barnard.  305 

v.  Knight  (1736),  Bac.  Abridg.  A  2  (Libel) 

v.  Labouchere  (Lambri's  Case),  14  Cox,  C.  C.  419 

v.        (Vallombrosa's  Case),  12  Q.  B.  D.  320  ;    53  L.  J.  Q.  B. 

362  ;  32  W.  R.  861  ;  50  L.  T.  177  ;  15  Cox,  C.  C.  415  ;  48  J.  P.  165  423, 


110, 


—  v.  Lambert  and  Perry,  2  Camp.  398  ;  31  How.  St.  Tr.  340 


314 


Langley,  2  Lord  Raymond,  1029  ;  2  Salk.  697  ;  6  Mod 

654  . 

Larkin,  Dears.  C.  C.  365 ;  23  L.  J.  M.  C.   li 
Larrieu,  7  A.  &  E.  277 

Latimer,  15  Q.  B.  1077  ;  20  L.  J.  Q.  B.  129  ;  15  Jur 
Laurence,  12  Mod.  311  ;  Dig.  L.  L.  121 
Lawson,  1  Q.  B.  486  ;  1  Gale  &  D.  15 
Leafe,  Andrews,  226 
Ledger,  Times,  Jan.  14,  1880    . 
Lee,  12  Mod.  514    . 

4  Esp.  123  . 

Lefroy,  Ex  parte  Jolliffe,   L.  R.  8  Q.  B.  134  ;    42  L.  J 

21  W.  R.  332  ;  28  L.  T.  132 
Leigh  and  John  Hunt,  3  Chit.  Cr.  L.  881 
Leng,  34  J.  P.  309    .... 
Liverpool  (Mayor  of)  and  others,  41  L.   J.  Q.  B.  175 

389  ;  26  L.  T.  101 

Llaufaethlv,  2  E.  &B.  940  ;  23  L.  J.  M.  C.  33  ;  17  Jur. 
Lofield,  2  Barnard.  128  . 
Lord  Mayor  of  London,  and  Vance,  16  Q.  B.  D     ' 


428,  429,  431 
25,  97,  98,  480 
579,  601,  604 
125  ;    Holt 

.   500,  509 

.     606 

.       .     428 

609,  614 

.       .     483 

.     428 

.       .     506 

.50 

.       .     509 

249,  260 

Q.  B. 121  ; 

506,  507,  510 
.    430 


20  W.  R. 


1123 


22 

609 

564 

257 


L.  J.  M. 


C.  118  ;  34  W.  R.  544 

614  ;  16  Cox,  C.  C.  81 
Lovett,  9  C.  &  P.  462 
Lowe  and  Clements,  8  Exeh.  697 
M'Laughlin,  14  J.  P.  291    . 
Mann,  4  M.  &  S.  337       . 
Marsden,  4  M.  &  S.  164  ;  3  Russ. 
Marshall,  4  E.  &  B.  475 
Marl  in,  2  Camp.  100 

James,  5  Cox,  C.  C.  356 

Matthews  (1719),  15  How.  St.  Tr.  1323 
Mayo.  1  Keb.  508;  1  Sid.  144    . 
Mead,  4  Jur.  1014      . 
Mein,  3  T.  R.  597 


54  L.  T.  761  ;  2  Times  L.  R.  482  ;  50  J.  P. 


—  v.  Mitchell.  J.  (indictment),  11  L.  T.  (O.  S.)  112 

—  v.       (information),  3  Cox,  C.  C.  93 

—  v.  Moore,  3  B.  &  Ad.  188  .... 

—  v.  Morton.  1  Dowl.  N.  S.  543 

—  v.  Moxon,  2  Mod.  St.  Tr.  356 

—  v.  Murphy,  8C.&  P.  297       .... 

—  v.  Newhouse,  22  L.  J.  Q.  B.  127  ;  1  L.  &  M.  129  ;  17  J.  P. 


397 

156,  334,  434,  482,  483,  560,  599 

;  22  L.  J.  Ex.  262  .     .     .  525 

426 

605 

on  Crimes,  209      .     .   .  593 

.  .  431,  610 

.   .  601 

.  497 

.   .  102 

,     .  505 

.   .  429 

.  611 

.  483,  686 

483,  597,  686 

.   .  329 

.  598 

.  445,  460 

66,  595 

57    .  .  609 


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B. 

K.  v. 


22  W.  R 


C.  358 


162 

490 


45 

497. 

423, 


(The  paging  refers  to  the  [*]  pages.), 

Newman,  1  El.  &  Bl.  268,  558  ;  22  L.  J.  Q.  B.  156  ;  Dears.  C.  C. 
17  Jur.  617  ;  3  C.  &  K.  252         .  172,  175,  313 

17  J.  P.  84 

Niblett  (not  reported)  .... 

Norris,  2  Ld.  Kenyon,  300 

Nottingham  Journal,  9  Dowl.  1042     . 

Nun,  10  Mod.  186    . 

Nutt  (Eliz.)  [1728],  1  Barnard.  306  ;  Fitzg.  47 

(Richard)  [1754],  Dig.  L.  L.  68 

Oastler,  L.  R.  9  Q.  B.  132  ;  43  L.  J.  Q.  B.  42  . 

T     T    R°>0 

Odgers,  2  Moo.  &  Rob.  479  ... 

0'Do»;herty,  5  Cox,  C.  C.  348 

Onslow  and  others,  L.  R.  9  Q.  B.  219  ;  12  Cox,  C 

Orme  and  Nutt,  1  Ld.  Raym.  486  ;  3  Salk.  224    . 

Osborn,  2  Barnard.  138,  166  ;  Kel.  230 

Owen,  18  Howell's  St.  Tr.  1203,  1228 ;  Dig.  L.  L.  67 

Paine,  Carth.  405  . 

Samuel  (1695),  5  Mod.  167 

Thomas,  22  Howell's  St.  Tr.  358 

Palmer,  5  E.  &  B.  1024      . 

Paty,  2  Ld.  Raym.  1108 

Peacham.  Cro.  Car.  125  ;  2  Cobbett's  St.  Tr.  870 

Pearce,  Peake,  75 

Peltier,  28  Howell's  St.  Tr.  617      . 

Penny,  1  Ld.  Raymond,  153     . 

.  Perry,  15  Cox,  C.  C.  169     . 

.  Petcherini,  7  Cox,  C.  C.  79      . 

.  Philipps  (1805),  6  East,  464. 

.  Pisrott,  11  Cox,  C.  C.  44 

.  Pfumer,  Russ.  &  Ry.  264   . 

.  Pocock,  2  Str.  1157 

.  Pooley  (Bodmin,  1857),  Digest  of  Crim.  Law,  97 

Price,"  Swansea  Assizes,  Aug.  9th,  1881 

Pym  rel  Prin  (1664),  Sid.  219  ;  1  Keble,  773 
.  Queen's  County  (JJ.  of),  10  L.  R.  Ir.  294  ;  15  Cox,  C.  C. 


[*lv.] 


85; 

,  577, 
*607. 


414, 
;  29 


340, 
501, 

424, 

483. 


5,  155 


490 


409 


204, 


212 

446 

60 

487 


446 


149 


Rainer,  2  Barnard.  293  ;  Dig.  L.  L.  125    . 

Ramsey  and  Foote,  48  L.  T.  733  ;  15  Cox,  C.  C.  231  ;  1  C.  & 
126  .      415,  436,  442,  446,  459,  463,  464,  679, 

Rea  (1),  9  Cox,  C.  C.  401  ;  17  Ir.  C.  L.  R.  584    . 

—  (2),  2  L.  R.  Ir.  429 ;  14  Cox,  C.  C.  139 

—  (3),  4  L.  R.  Ir.  345  ;  14  Cox,  C.  C.  256 
Read  (1708),  Fortescue,  98  ;  11  Mod.  142       . 
Redman,  L.  R.  1  C.  C.  R.  12  ;  39  L.  J.  M.  C.  89 
Reeves,  Peake's  Add.  Cas.  84 ;  26  Howell's  St.  Tr.  530 


E. 

688- 
431, 


603 
673 
608 
684 
428 
428 
506 
480 
487 

599 
596 
496 

512 
425 
429 
489 
433 
435 
487 
598 
501 
477 
600 
,  430 
506 
,  284 
,  455 
,  425 
,  603 
600 
506 
459 
594 
483 
488 
509 
489 


o.  Revel,  1  Str.  420  ... 

v.  Roberts  and  others,  3  Keble,  578 

v.  Rogers,  2  Ld.  Raym.  777  ;  7  Mod.  28 

v.  Rosenberg,  Times,  Oct.  27th  and  28th,  1879 

v.  Rosenstein,  2  C.  &  P.  414 

■  v.  Rudge,  (C.   A.)  16  Q.  B.   D.  459;  55  L.  J.  M 

207  ;  53  L.  T.  851  ;  50  J.  P.  755 

•  v.  Ryder-Burton,  38  J.  P.  758      . 

■  v.  St.  John,  Oliver  (1615),  Noy,  105 

•  v.  Salisbury,  1  Ld.  Raym.  341     . 

■  v.  Saunders,  Sir  T.  Raym.  201 

■  v.  Scofield  (1784),  Cald'ecott,  397 

■  v.  Seton,  7  T.  R.  373  . 


C.  112  ;  34  W 


■704 
597 
511 
507 
454 
427 
488 
604 
506 
.  13 
494,  506,  509 


25, 

487, 


483, 
489, 
505, 


472 
R. 


562 

598 
608 
480 
191 
21 
57 
599 


(55) 


lvi 


TAIiLIC  OF  CASES. 


[*lvi] 

R. 

K.  v. 


(The  paging  refers  to  the  [*]  pages.) 


430,  n. 
'.  308 
St.  Asaph), 


4  Doug].  73  ;  3  T.   R.  428, 


Scymore,   Winchester    Spring  Assizes,   1880  ;    Times,  April    23rd, 
1 880 

—  r.  She^bbeare,  3  T.  R. 

—  r.  Shimmens,  34  .1.  I 

—  v.  Shipley   (Dean   of 
St.  Tr.  lot:',  . 

—  r.  Shuckburgh,  1  Wils.  29  .... 

—  v.  Sidney,    Algernon,   9  Howell's  St.  Tr.  817,  807;    3  Ilarg.  St 

807  ;  4  St.  Tr.  197    . 

—  r.  Skinner,  Lofft,  55  .... 

—  v.  Skipworth,  L.  R.  9  Q.  B.  230  ;  12  Cox,  C.  C.  371 

—  r.  Slaney,  5  C.  &  P.  213    . 

—  v.  Smithson,  4  B.  &  Ad.  8G2    . 

—  v.  Southerton,  6  East,  126  . 

—  v.  Southwell  (1842)        ..... 

—  v.  Sparrow,  2  T.  R.  198     . 

—  v.  Spencer,  8  Dowl.  127   ' 

—  v.  Spragg  and  another,  2  Burr.  929 

—  v,  Stanger,  L.  R.  6  Q.  B.  352  ;  40  L.  J.  Q.  B.  96  ;  19  W 

L.  T.  266  ;  35  J.  P.  84,  580 

—  v.  Steel,  1  Q.  B.  D.  482  ;  45  L.  J.  Q.  B.  391  ;  24  W.  R.  638  ;  34  L 
283  ;  13  Cox,  C.  C.  159  ;  40  J.  P.  407 


179 
424,  479 
.  608 
21 

604,  605 

.  592 

Tr. 

.  43-4,  477 

.  18!),  190,  192 

494,  497,  501 

560,  562,  599,  (500 

.   .  612 

.  427 

.   .  445 

9,  523 

.   .  598 

.  607 

R.  640  ;  24 

559,  611 


T. 


— V. 

—        (C.  A.)  2  Q.  B.  D.  37 

L.  T.  534 

—  V. 

Steward,  2  B.  &  Ad.  12 

V. 

Stockdale,  22  Howell's  St.  Tr 

V. 

Stuart,  3  Chit.  Crirn.  L.  887 

V. 

Sullivan,  11  Cox,  C.  C.  44  . 

—  V. 

Sully,  12  J.  P.  530 

V. 

Summers,  1  Lev.  139 

—  t\ 

Sutton,  4  M.  &  S.  548     . 

V. 

Tanfleld,  42  J.  P.  423 

'0. 

Taylor,  3  B.  &  C.  502  ;  5  D.  . 

—  «. 

- —     1  Ventr.  293  ;  3  Keb. 

46  L.  J.  M.  C.  1  ;  25  W.  R. 


238 


25,  45,  469,  482,  484, 


v.  Templar,  1  Nev.  &  P.  91 


&  R.  422 
607  ;  Tremayne's  Entries,  226 
452,  454,  455, 


442 


—  v. 

—  v. 

—  v. 


—  v. 

—  V. 


V. 

V. 

V. 

-^  V. 

V. 

V. 

-  V. 

V. 

V. 

-  V. 

-  V, 

-  V. 

-  V. 


15 


10  Cox,  C.  C.  356 
49  L.  J.  M.  C.  57 


28  W.  R. 


Tr.   1095 
102,  424, 


423,  424, 


Thomas,  4  M.  &  S 
Thompson  (1869) 
Topham,  4  T.  R.  126 
Townsend,  4  F.  &  F.  1089 
Truelove,   5  Q.  B.  D.   336 
L.T.  250;  14  Cox,  C.  C.  408 
Truscott  (not  reported)  .... 
Tucker,  Rv.  &  M.  134  . 

Tutchin  (1704),   5  St.   Tr.  527  ;  14  Howell's  St. 
Raym.  1061  ;  .1  Salk.  50  ;  6  Mod.  268  ;  Holt,  424 
Unwin,  7  Dowl.  578 
Veley,  4  F.  &  F.  1117    . 
Vincent,  9  C.  &  P.  91,  109   . 
Vint,  27  How.  St.  Tr.  627 
Waddington  (1800),  1  East,  143 

(1822),  1  B.  &  C.  26 

Waite,  1  Wils.  22      . 
Walter,  3  Esp.  21 
Ward,  10  Cox,  C.  C.  42 
Watson  (1808),  1  Camp.  215 

James  (1817),  2  .Stark,  116  . 

and  others  (1788),  2  T.  R.  199 

Webster,  3  T.  R.  388 

Wegener,  2  Stark.  245     . 

We'ltje,  2  Camp.  142  . 

Whailey  and  others,  L.  R.  9  Q.  B.  219  ;  12  Cox,  C.  C.  358 

(56) 


614 


31 


487,  492, 
593, 


35 
.  614 
.  561 
.  489 
.  472 
604 
609 
.  592 
.  601 
45,  429,  608 
.  596 
.  443,  451 
462,  463,  696 
598 
.  .  597 
.  446 
433,  595,  605 
.  439 
413  ;  42 

.   .  474 
.  560 
.  .  601 
2  Ld. 

483,  484,  594 

.  .  599 

52,  234 

.  .  380 

.  430 

.  425,  606 

443,  466,  697 

.  .   -28 

5,  159,  414,  435 

.  .  427 

.  600 

.  .  562 

97,  429,  493 

.  .  611 

432,  594,  599 

.  .  505 

497,  501,  512 


TABLE  OF  CASES.  lvii 

(The  paging  refers  to  the  [*]  pages.)  [*  lvii.] 

R.— Rob.  .  PAGE 

R.  v.  White  and  another,  1  Camp.  359,  n.  86,  429,  493 

—  V.  Whitehouse  and  Tench,  Dears.  C.  C.  1             .  .              .              .     607 

—  v.  Wiatt  (1722),  8  Mod.  123     .            .            .            .  .            .     162,  435 

—  v.  Wilkes,  4  Burr.  2527,  2568  ;  2  Wils.  151  ;  Dig.  L.  L.  69  ;    19  How. 

St.  Tr.  1075  .  .  .  .445,  471,  480,  592,  596,  613 

—  v.  Willett,  6  T.  R.  294         .  .  .  .  .  .  .611 

—  v.  Williams,  13  How.  St.  Tr.  1387      .  .  .  .  .       .         5 

—  v.        26  How.  St.  Tr.  656  .  .  .  .  443,  453,  466 

—  v.        Lofft,  759  ......       .     608 

—  v.        - ■      2  Roll.  Rep.  88  .  .  .  .  .478 

_  0.        Elizabeth,  W.  N.  1870,  p.  120  .  .  .       .     608 

—  v.        J.  A.  (1822),  5  B.  &  Aid.  595  ;  Townsend's  Mod.   St.   Tr  . 

231  .  .  .  .  .     424,  429,  612 

—  v.        John,  Dig.  L.  L.  69  .  .  .  .  .     480 

—  v.        Sir  William  (1686),  2  Shower,  471  ;  Comb.  18  ;  13  How  St. 

Tr.  1370            .             .             .             .             .  .             .       .     185 

—  v.  Wilson,  14  L.  J.  M.  C.  3     .            .            .            .  .            .       .     599 

—  v.     2  Moo.  C.  C.  52      .         .            .            .            .  .  62,  123 

—  v.     4  T.  R.  487               .            .            .            .  .            .       .     608 

—  v.  Wintcrbotham,  22  How.  St.  Tr.  823,  875         .            .  .            .     487 

—  v.  Withers,  3.  T.  R.  428              .            .            .            .  .        .     604,  608 

—  v.  Woodfall,  5  Burr.  2661       ......     480,  604. 

—  v.  Woolmer,  12  A.  &  E.  422                     .            .            .  .            .       611 

—  v.  Woolston,  2  Str.  834 ;  Fitzgib.  64  ;  1  Barnard.  162    .  443,  454,  455,  462, 

463,  697 

—  v.  World,  The,  13  Cox,  C.  C.  305 613 

—  v.  Wrennum,  Pop.  135       .......     493 

—  v.  Wright  (1799)  8  T.  R.  293     .  .  .  .  185,  248,  265,  430 

—  v.      3  Mer.  386,  n.  ......     445 

—  v.  Wrightson,  2  Salk.  698  ;  11  Mod.  166  ;  2  Roll.  Rep.  78  ;  4  Inst.  181     505 

—  v.  Yates,  11  Q.  B.  D.  750  ;  52  L.  J.  Q.  B.  778  ;  48  J.  P.  102  ;    15  Cox, 

C.  C.  272 384,  590 

—  v.      (C.  A.),  14  Q.  B.  D.  648  ;  54  L.  J.    Q.  B.    258  ;    33  W.   R. 

482  ;  52  L.  T.  305  ;  15  Cox,  C.   C.  688  ;  49  J.  P.  436  ;  1 
Times  L.  R.  193  ....  384,  590,  6' 0 

—  v.      James,  12  Cox,  C.  C.  233  .  .  .     24,  115,  594 

—  v.      and  another,  12  Cox,  C.  C.  441  .  .  .       .     426 

Reynolds  v.  Harris,  3  C.  B.  N.  S.  279  ;  28  L.  J.  C.  P.  26  .  .     369 

Rhodes  v.  Liverpool  Investment  Co.,  4  C.  P.  D.  425     .  *     .  587 

Rice  v.  Pidgeon,  Comb.  161  .  .  .  .  .  .82 

Richards  v.  Richards,  2  M.  &  Rob.  557     .  .  .  166,  175,  235,  237 

Richardson  v.  Allen,  2  Chit.  657        .  .  .  .  .     62,  84,  124 

v.  Willis,  L.  R.  8  Ex.  69  ;  42  L.  J.  Ex.  15,  68  ;  27  L.  T.  828  ; 

12  Cox,  C.  C.  298,  351  ..  •  .  .     609 

Richmond  (Duke  of)  v.  Costelow,  11  Mod.  235  .  .  .     137 

Riddell  v.  Clvdesdale  Horse  Society,    12   Court  of   Session   Cases  (4th 

series),  976  ......  .     256,  339,  344 

Riding  v.  Smith,  1  Ex.   D.  91  ;    45  L.  J.  Ex.  281  ;    24  W.  R.  487  ;  34 

L.  T.  500  .  .     15,  79,  80,  85,  87,  92,  303,  304,  331,  332,  395,  410 

Riley  v.  Byrne,  2  B.  &  Ad.  779  .  .  .  .  .  .  578 

Rily  v.  Lewis  (1640),  1  Vin.  Abr.  396  ....  86,  87 

Risk  Allah  Bey  v.  Johnstone,  18  L.  T.  620  .  .  .     324,  582 

r.  Whitehurst  and  others,  18  L.  T.  615       .       46,  263,  311,  574 

Roach  v.  Garvan,  Be  Read  and  Huggonson,  2  Atk.  469  ;  2  Dick.   794     .     124, 

131,  338,  351,  494,  496,  520 
Roberts  v.  Brown,  10  Bing.  519  ;  4  M.  &  Scott,  407  ;  6  C.  &  P.  757.       46,  177, 

260,  557 

v.  Camden,  9  East,  93  ....  56,58,97,126 

v.  Herbert,  Sid.  97;  S.   C,  sub  nom.   Caus  v.   Roberts,   1  Keb. 

418 60,  86 

Roberts  v.  Richards,  3  F.  &  F.  507     .  .  .  .  .  -222 

(57) 


lviii  TABLE  OF  CASES. 

[*lviii.]  (The  paging  refers  to  the  [*]  pages.) 

Kob-San.  .  ^  page 

Roberts  and  Wife  v.  Roberts,  5  B.  &  S.  384  ;    33  L.  J.   Q.   B.  249  ;    10 

Jur.  N.  S.  1027  ;  12  W.  R.  909  ;  10  L.  T.  602        .        87,  88,  300,  301,  336 
Robertson  v.  Labouchere,  42  J.  P.  710  .....    496 

v.  M'Dougall,  4  Bing.  670  ;  1  M.  &  P.  692  ;  3  C.  &.  P.  259.  231,  285 

- —      v.  Wylde,  2  M.  &  Rob.  101  .  ....    273,311 

Robinson  v.  Jermyn,  1  Price,  11  .  .  .  .  .23 

v.  Jones,  4  L.  R.  Ir.  391  .  .  152,  245,  286,  288,  559 

v.  Marchant,  7  Q.  B.  918  ;  15  L.  J.  Q.  B.  134  ;  10  Jur.  156      .      13, 

80,  336,  418 

v.  May,  2  Smith,  3     .  .  .  .  .  .     169,  226 

Robinson's  Case,  1  Brown,  643  ......     446 

Robshaw  v.  Smith,  38  L.  T.  423  .  .  .  .         205,  208,  620 

Rodgers  v.  Kline,  56  Miss.  808  ;  31  Amer.  R.  389    .  .  .  .       78 

Rodriguez  v.  Tadmire,  2  Esp.  721  .  .  .  .  .       .     321 

Roe  v.  New  York  Press  and  another,  75  Law  Times  (Newspaper),  31         .     555 
Rogers  r.  Clifton  (Sir  Gervas),  3  B.  &  P.  587  .  203,  236,  274,  279,  570 

v.  Gravat,  Cro.  Eliz.  571  .  .  .  .  .       .       60 

Rolin  and  another  r.  Stewart,  14  C.  B.   595  ;    23  L.  J.  C.  P.  148  ;  18  Jur. 

576  ;  2  C  L.  R.  759 13 

Rollins  v.  Hinks,  L.  R.  13  Eq.  355  ;  42  L.   J.   Ch.   358  ;    20  W.   R,  287  ; 

26  L.  T.  56 146,  348,  349,  357 

Root ».  King,  7  Cowen,  613 ;  4  Wend.  113         .  .  q  .       .       44 

Roper  v.  Streater,  Skin.  234  ;  1  Mod.  217      .  .  .  .  .     340 

Rose  v.  Groves,  5  M.  &  Gr.  618   .  .  .  .  .       .     307 

Roselle  v.  Buchanan,  16  Q.  B.  D.  656  ;  55  L.  J.   Q.  B.   376  ;   34  W.  R. 

488  ;  2  Times  L.  R.  367  .  .  .  .  .  .     534 

Ross  v.  Lawrence  (1651),  Sty.  263  .....       .     529 

Rotheram  v.  Priest,  49  L.  J.  C.  P.  104  ;  28  W.  R.  277  ;  41  L.  T.  588        .     543 
Routh  v.  Webster,  10  Beav.  561     .  .  .  .  .     352,  354,  358 

Rowcliffe  v.  Edmonds  et  ux.,  7  M.  &  W.  12  ;  4  Jur.  684  .  .       .       55 

Rowe,  Ex  parte,  20  L.  T.  (Old  S.)  115  ;  17  J.  P.  25  428 

v.  Roach,  1  M.  &  S.  304      . 530 

Ruckley  v.  Kiernan,  7  Ir.  C.  L.  R.  75  .  .  .  .  .284 

Ruel  v.  Tatnell,  29  W.  R.  172  ;  43  L.  T.  507  ;  45  J.  P.  175        .      82,  101 ,  113, 

115,  567 
Rumsey  v.  Webb  et  ux.,  Car.  &  M.  104  ;  11  L.  J.  C.  P.  129      .       79,  215,  239, 

299,  312 
Runkle  v.  Meyers,  3  Yeates  (Penn.),  518  .  .  .  .       .     165 

Russell  (Sir  William)  v.  Ligon,  1  Roll.  Abr.  46  ;  1  Vin.  Abr.  423  .  .       56 

and  another  v.  Webster,  23  W.  R.  59  .  .         29,  31,  104,  420 

Rustell  v.  Macquister,  1  Camp.  49  n.  .  .  .  .  277 

Rutherford  v.  Evans,  6  Bing.  451  ;  8  L.  J.  (Old  S.)  C.  P.  86  ;  4  M.  &  P. 

163  ;  4  C.  &  P.  74        .         21,  66,  309,  331,  332,  333,  529,  558 

v.  Wilkie,  41  L.  T.  435  .  .  .  .  .     372 

Ryalls  v.  Leader  and  others,  L.  R.  1  Ex.  296  ;  4  H.  &  C.  555  ;  35  L.  J. 
Ex.  185  ;  12  Jur.  N.  S.  503  ;  14  W.  R.  838  ;  14  L.  T.  563  ;  30  J.  P. 
520  .  .  .  - 410 


St  Nazaire  Co..  In  re,  12  Ch.  D.  88  ;  27  W.  R.  854  ;  41  L. 
Salm-Kyrburg  ».  Posnanski,  13  Q.  B.  D.  218  ;  53  L.   J.   Q. 

W.  R.  752      . 
Salmon  v.  Isaac,  20  L.  T.  885  .... 

Salter  v.  Browne,  Cro.  Car.  436  ;  1  Roll.  Abr.  37 
Sampson  v.  Mackay,  L.  R.  4  Q.  B.  643  ;  10  B.  &  S.  694  ;  38 

245  ;  17  W.  R.  883  ;  20  L.  T.  807  ;  33  J.  P.  646     .     " 
Sanderson  v.  Caldwell,  45  N.  Y.  398  ... 

Sandford  v.  Bennett,  24  New  York,  20  . 
Sands  v.  Child  and  others,  3  Lev.  352 

(58) 


T. 

110 

369 

15. 

428; 

32 

503 

150, 

256, 

262 

59,  87 

L. 

f.  Q. 

B. 

365 
73 

408 
410 

TABLE  OF  CASES.  lix 

(The  paging  refers  to  the  [*]  pages.)  [*  lix.] 

San— Sib.  -  facie 

Waner  v.  Bilton,  11    Ch.  D.  416 ;    48   L.  J.  Ch.  545  ;    27  W.  R.  472  ;    40 

L.  T.  134  .  . 371 

Saram  (Bishop  of)  v.  Nash.B.  N.  P.  9  ;  Willes,  23  .  .       .      74 

Saunders  v.  Bate,  1  H.  &  N.  402  .  .  .  .         528,  564 

v.  Edwards,  1  Sid.  95  ;  1  Keble,  389  ;  Sir  T.  Eaym.  61        .  105,  521 

V.  Mills,  3  M.  &  P.  520  ;  6  Bins?.  213  .  160,  176,  257,  315 

Savage  v.  Robeiy,  5  Mod.  398  ;  2  Salk.  694  .  .  .62,  82,  84 

Savile  v.  Jardine,  2  H.  Bl.  531     .  .  .  .  .  62,  82,  84 

Savile  et  ux.  v.  Sweeney,  1  N.  &  M.  254 ;  4  B.  &  Ad.  514  .  336,  399 

Saxby  v.  Easterbrook,  3  C.  P.  D.  339  ;  27  W.  It.  188    .  .        262,  340,  341 

351,  359,  361 
Say   &  Seal   (Viscount)  «.  Stephens,  Ley,  82  ;    Cro.  Car.  135,  535  ;  Litt. 

342  .......  136,  520 

Sayer  v.  Begg,  15  Ir.  C.  L.  R.  458  .  .  .  .  .       .     237 

Scarll  v.  Dixon,  4  F.  &  F.  250  .  .  .  212,  227,  228,  245,  273 

Scot  et  ux.  v.  Hilliar,  Lane,  98  ;  1  Yin.  Abr.  440  .  .  .      55,  124 

Scott  v.  Sampson,  8  Q.  B.  D,  491  ;  51  L.  J.   Q.   B.  380  ;    30  W.  R.    541  ; 

46  L.  T.  412  ;  46  J.  P.  408  !  .  .  312,  313,  315,  321,  542,  577 

v.  Seymour  (Lord),  1  II.  &  C.  219  ;    31  L.  J.  Ex.  457  ;    32  L.  J.  Ex. 

61  ;  8  Jur.  N.  S.  568  ;  10  W.  R.  739  ;  6  L.  T.  607  .  .     518 

v.  Shepherd,  1  Sm.  L.  C.  8th  ed.  466  ;  2  Wm.  Bl.  892  ;    3  Wils.  403     331 

v.  Stansfield,  L.  R.  3  Ex.  220  ;  37   L.  J.  Ex.  155  ;    16   W.  R.    911  ; 

18  L.  T.  572  ;  32  J.  P.  423.  ....         188,  544 

Scripps  v.  Foster,  39  Mich.  376 ;  41  Mich.  742  .  .  .  .       .       44 

v.  Reilly,  38  Mich.  10  ....  159,  311,  323 

Seaman  v.  Bigg,  Cro.  Car.  480     .  .  .  .  .  79 

v.  Netherclift,  1  C.  P.  D.  540  ;  45  L.  J.    C.   P.    798  ;    24  W.    R. 

884  ;  34  L.  T.  878  ;  41  J.  P.  389  .         131,  182,  191 

193,  560,  644 

v.         (C.  A.)  2  0.  P.  D.  53  ;    46   L.    J.    C.    P.   128  ;    25 

W.  R.  159  ;  35  L.  T.  784      .  .  .        131,  182,  191,  193,  560,  644 

Secor  v.  Harris,  18  Barb.  425  ......       77 

Seeley  v.  Fisher  (1841),  11  Sim.  581        .  .  .  .  .344,  353 

Senior  v.  Medland,  4  Jur.  N.  S.  1039  .  .  234,  241,  245,  283,  285 

Serle  v.  Maunder  (1620),  1  Rolle,  Abr.  72  .      ,      .  .  .       .       58 

Seroka  and  wife  v.  Kattenburg  and  wife,  17  Q.    B.    D.    177  ;    55   L.   J. 

Q.  B.  375  ;  34  W.  R.  542  ;  54  L.  T.  649  .  .  .  .     400 

Seven  Bishops'  Case,  4  St.  Tr.  300  ....  .    562,  600 

Severance  v.  Civil  Service  Supply  Association,  48  L.  T.  485  .  .     396 

Sewall  v.  Catlin,  3  Wendell  (New  York),  292    .  .  .  .       .     247 

Seymour  v.  Butterworth,  3  F.  &  F.  372  .  .  .      40,  42,  43 

v.  Coulson  (C.  A.)  28  W.  R.  664  .  .  .  .       .     587 

Ex  parte  v.  Michael  Davitt,  12  L.  R.  Ir.  46  ;  15  Cox  C.  C.  242        479 

488 
Shackell  v.  Rosier,  3  Scott,  59  ;  2  Bing.  K  C.  634  .  .  .  8,  411 

Shafer  v.  Ahalt,  48  Maryland,  171  ;  30  Amer.  Rep.  456  .  .        57,  87 

Shaw  v.  Shaw,  31  L.  J.  Pr.  &  Matr.  35  ;  2  Sw.  &  Tr.  515  ;  6  L.  T.  477    .     497 

v.  Thompson,  Cro.  Eliz.  609     .  .  .  .  .  .56 

Sheahan  v.  Ahearne  (1875),  Ir.  R.  9  C.  L.  412   .  .  .  .      91,  532 

Sheffill  v.  Van  Deusen,  15  Gray,  485  .....     318 

Shelby  v.  Sun  Printing  Association,  38  Hun,  (45  K  Y.  Supr.  Ct.)  474      .       22 
Shepheard  v.  Whitaker,  L.  R.  10  C.  P.  502 ;  32  L.  T.  402  6,  29,  155,  413 

Sheppard  v.  Lloyd,  Daily  Chronicle,  March  11th,  1882         .  .  47,  253 

Sheriff  of  Surrey,  In  re,  2  F.  &  F.  234,  236         .  .  .  .  495,  501 

Shipley  v.  Todhunter,  7  C.  &  P.  680  .  .  98,  107,  154,  239,  285,  559 

Shire  ».  King,  Yelv.  32  .  .  .  .  .  .  .       .       76 

Shore  v.  Wilson,  9  Clark  &  Fin.  355  .      441,  442,  443,  459,  461,  464,  467 

Shrewsbury  v.  Hornby,  5  Hare  406   ......     462 

Shurtleff  v.  Parker,  130  Mass.  293  ;  33  Amer.  R.  454    .  .  .    167,  243 

v.  Stevens,  51  Vermont,  501  ;  39  Amer.  R.  698     .  ■  .  243,  247 

Sibley  v.  Tomlins,  4  Tyrw.  90    .  .  .  .  .  69,  82,  108 

Sibthorpe's  Case,  Dr.,  W.  Jones,  366  ;  Roll.  Abr.  76  .  .74 

(59) 


I  A 


TAULE  OF  CASES. 


[*  lx]  (The  paging  refers  to  the  [*]  pages.) 

Sib— Sou.  PAGE 

Sidnam  v.  Mayo,  1  Roll.  Rep.  427  ;  1  Roll.  Abr.  49  ;  Cro.  Jac.  407  .     58,  126 

Sidney's  (Algernon)  Case,  9  How.  St.  Tr.  817,  867  ;  4  St.  Tr.  197  434,  477 


Simmonds  v.  Dunne,  Ir.  R.  5  C.  L.  358     . 

Simmons  v.  Mitchell,  0  App.  ('as.  156  ;  50  L.    J. 
401  ;  43  L.  T.  710  ;  45  J.  P.  237 

v.  Sweete,  Cro.  Eliz.  78 

Simpson  r.  Downs,  16  L.  T.  391 

v.  Robinson,  12  Q.  B.  511  j  18  L.  J.  Q.  13. 


8  Scott  275 
71 


110 


J.    Q 

49  L 


Singer  Manufacturing  Co.  v.  Domestic  Sewim 

70  ;  b~>  Amer.  Rep.  674    . 
Skinner  v.  Kitch,  L.  R.  2  Q.  B.  393  ;  36  L.    J 
830  ;  16  L.  T.,413    . 

v.  Shoppee,  et  ux.,  6  Bing.  N.  C.  131 

Skipwortk's  Case,  L.  R.  9  Q.  B.  230  ;  12  Cox,  C.  C. 
Slater  v.  Franks,  Hob.  126      . 
Slocomb's  Case,  Cro.  Car.  442 
Slowman  v.  Dutton,  10  Bing.  402 
Smalpage  v.  Tonge  (C.  A.),  17  Q.  B.  D.  644 ; 

W.^R.  768  ;  55  L.  T.  44  . 
Smith,    Ex  parte,    In  re  Bishop,  13   Ch.  D 
W.  R.  174;  41  L.  T.  388     . 

v.  Andrews,  1  Roll.  Abr.  54  ;  Hob.  117 

v.  Ashley  (1846),  52  Mass.  (11  Met.)  367 

v.  Berg,  25  W.  R.  606  ;  36  L.  T.  471    . 

v.  Flynt,  Cro.  Jac.  300      . 

v.  Harrison,  1  F.  &  F.  565 

v.  Higgius,  16  Gray,  (82  Mass.),  251 

v.  Hodgeskins,  (1633),  Cro.  Car.  276    . 

v.  Knowleden,  2  1.  &  Gr.  561 

V.  Lakeman,    26  L.    J.  Ch.    305  ;  2  Jur.  N.   S.  1-02 

S.)98 

v.  Matthews,  1  M.  &  Rob.  151 


200,  246,  283,  537 
P.    C.    11  ;    29    W.    R. 

57,  101,  102,  113.  531,566 

.     506 

.       .     246 

13  Jur.  187  .    178, 

278,  279,  311,  569 

Machine  Co.,  49  Georgia, 


M.    C.    322  ;    15    W.    R 


494,  497, 


B.    518 


34 


J.  Bkcy.  1;  28 


355 

16 
369 
501 
111 
119 
105 

519 

499 


14  L.  J.  Ex. 


2D.&L 


196 

4   Dowl. 


333:  2 


Parker,  13  M.  &  W,  459 
-v.  Richardson,  Willes,  20 

v.  Scott,  2  C.  &  K.  580  . 

v.  Spooner,  3  Taunt.  246 

©.  Taylor,  1  B.  &  P.  N.  R. 

V.  Thomas,    2   Scott,   546  ; 

Hodges,  353  .... 

i:  Ward  (1624),  Cro.  Jac.  674 

v.  Wood,  3  Camp.  323  . 

Snag  v.  Gee,  4  Rep.  16     . 

v.  Gray,  1  Roll.  Abr.  57 ;  Co.  Entr.  22 

Snell  v.  Wcbling,  2  Lev.  150  ;  1  Ventr.  276       . 
Snowdon  v.  Smith,  1  M.  &  S.  286,  n. 
Snyder  v.  Andrews,  6  Barbour  (New  York),  43 
Soane  v.  Knight,  Moo.  &  Mai.  74      . 
Societe   Anonyme  des  Manufactures  de   Glaces 
Sand  Blast  Co.  (C.   A.),   25  Ch.   D.  1  ;  53  L.  J 
49  L.  T.  451  ;  48  J.  P.  68 
Societe  Francaise  des  Asphaltes  v.  Farrell,  1  C.  &  E.  563 
Solomon  v.  Lawson,  8  Q.  B.  823  ;  15  L.  J.  Q.  B.  253  ;  10  Jur. 


160,  435,  638 

.     550 

.       .       59 

311,  324,  544,  579 

.       .     241 

224,  274 

.  529,  565 

T.  (Old 

497 
82,  235,  237,  280 
394  .     172 

.      299,  312,  576 
252,  319 


28  L 


Solomons  and  others  v.  Medex,  1  Stark.  191 
Somers  v.  Holt,  3  Dowl,  506  . 

v.  House  Holt,  39  ;  Skin,  364       . 

Somervillle  v.  Hawkins,  10  C.  B.  583;  20  L.  J. 

16  L.  T.  (Old  S.)  283        . 
Southam  v.  Allen,  Sir  T   Raym.  231 
Southee  v.  Denny,  1  Ex.  196  ;  17  L.  J.  Ex.  151 
Southey  v.  Sherwood,  2  Mer.  435 

(60) 


.  141,  142 
.     558 
Bing.   N.    C.    372;  1 

293,  537 

.    108,  123 

168,    236,  237 

.      63,  107 

.       75 

.    124,  130 

.     321 

.       .     152 

.       49 

V.    Tilghman's    Patent 

.  Ch.  1  ;  32  W.  R.  71  ; 

146,  343,  350 

.     329 

96  .      30, 

119,  128,  133,  52S,  529 

.  336,  418 

.     525 

.      54,  96 

C.  P.  131  ;  15  Jur.  450  ; 


202,  231,  2' 


81 


572 
206 
.  77 
8,  351 


TABLE  OF  CASES.  lxi 

(The  paging  refers  to  the  [*]  pages.)  [*lxi.] 

Sou    Sto.  page 

Southold  v.  Daunston,  Cro.  (Jar.  269  .            .  .            .                       .     117 

Spademan-  p.  Gibney,  Bristol  Spring  Assizes,  1878  .             .              226,  563 

v.      Ex.  D.  .            .            .  .            .            .           .     5:)7 

Spall  v.  Massey  and  others,  2  Stark.  559              .  .            .            .     6,    13 

Sparling    v.  Haddon,  9  Bing.  11  ;  2  Moo.  &  Sc.  14  .             .             .           .558 

Sparrow  v.  Hill,  (C.  A.)  8  Q.  B.  D.  479  ;  50  L.  J.  Q.  B.  675  ;  2!)  W.  R. 

705  ;  44  L.  T.  917 370 

Speaker  of  the  Legislative  Assembly  of  Victoria  v.  Glass,  L.  R.  3  P.  C. 

560  ;  40  L.  J.  P.  C.  17  ;  24  L.  T.  317       .  .  .  .  491 

Speck  v.  Phillips,  5  M.  &  W.  279  ;  8  L.  J.  Ex.  277  ;  7  Dowl.  470         .    .     312 
Spencer  v.  Amerton,  1  M.  &  Rob.  470  ....  .     241 

Spiering  v.  Andrae,  45  Wisconsin,  330      .  .  .  .  .    .       71 

Spill  v.  Maule,  L.  R.  4  Ex.  232  ;  38  L.  J.  Ex.  138  ;  17  W.  R.  805  ;  20 

L.  T.  675     .- 239,  272,  284,  285 

Springhead  Spinning  Co.  v.  Riley,  L.  R.  6  Eq.  551  ;  37  1,.  J.  Ch.  889  ; 

16  W.  R.  1138  ;  19  L.  T.  64     .  .  .       16,  354,  356,  357,  358,  410 

Squire  v.  Johns,  Cro.  Jac.  585  ......     127 

Stace  v.  Griffith,  L.  R.  2  P.  C.  420  ;  6  Moore,  P.  C.  C.  N.   S.  18  ;  20 

L.  T.  197  .  .  .  .  .  .  .     183,  213,  563 

Stainton  et  ux.  v.  Jones,  2  Selw.  N.  P.  1205,  13th  ed.  ;  1  Dougl.  380  n.  60,  86 
Stamp  and  wife  v.  White  and  wife,  Cro.  Jac.  600      .  .  .64,  96 

Stanhope  i\  Blith  (1585),  4  Rep.  15  .  .  .  .62,  83,  123 

Stanley  v.  Bos  well,  1  Roll.  Abr.  55  .....       72 

-  v.  Webb,  4  Sandf.  (N.  Y.)  21  .  .  .  .      .     99 

Stannus  v.  Finlay,  Ir.  R.  8  C.  L.  264  .  .  .  .  .       537,  578 

Stanton  v.  Smith,  2  Ld.  Raym.  1480  ;  2  Str.  762  ...    67,  80 

Staples  v.  Young,  2  Ex.  D.  324 ;  25  W.  R.  304  .  .  .     372 

Stapleton  v.  Frier,  Cro.  Eliz.  251  .  .  .  .  .  .  56,  121 

Stationers,  The  v.  Patentees  of  Rolle's  Abridgment,  Carter,  89        .  .     340 

Stead  v.  Williams  and  others,  5  C.  B.  528  .  .  .  .    .     407 

Stebbing  v.  Warner,  11  Mod.  255         ....  .         62,  123 

Steele  v.  Brannan,  L.  R.  7  C.  P.  261  ;  41  L.  J.   M.  C.  85  ;  20  W.  R. 

607  ;  26  L.  T.  509  ...        5,  255,  382,  444,  474,  475 

v.  Sonthwicke,  9  Johns.  (New  York)  214  .  .  .      124,  132 

Stees  v.  Kemble,  3  Casey  (28  Penns.  St.)  112  .  .  .  57,  123 

Stein  v.  Tabor,  31  L.  T.  444  .  .  .  .  .     548 

Stennel  v.  Hogg,  1  Wins.  Saunders,  228    .  .  .  .  .     605 

Stern  v.  Sevastopulo,  14  C.  B.  N.  S.  737  ;  32  L.  J.  C.  P.  268  ;  11  W.  R. 

862  ;  10  Jur.  N.  S.  317  ;  8  L.  T.  538 545 

Sterry  v.  Foreman,  2  C.  &  P.  592  .  .  .  .  .  299,  327 

Stevens  v.  Sampson,  5  Ex.  D.  53  ;  49  L.  J.  Q.  B.  120 ;  28  W.  R.  87  ;'  41 

L.  T.  782  ;  44  J.  P.  217      .  .  .    184,  194,  210,  256,  261,  262,  279 

Steward  v.  Young,  L.  R.  5  C.  P.  122  ;  39  L.  J.  C.  P.  85  ;  18  W   R.  492  ; 

22  L.  T.  168       .  .  .  .  .  .  .     143,  145,  530 

Stewart  v.  Howe,  17  111.  71  .  .  .  .  .  .       63 

Stich  v.  Wisedome,  Cro.  Eliz.  348  .  .  .  .  .    .       58 

Stiles  v.  Nokes,   7  East,  493;  S.   C.  sub  nom.   Carr  v.  Jones,   3  Smith, 

491    .  .  .  .  .  .  .  22,  46,  176,  260,  312 

Stober  v.  Green,  1  Brownl.  &  Golds.  5      .  .  .  .  .    .       81 

Stockdale  v.  Hansard  (1837),  7  C.  &  P.  731  ;  2  M.  &  Rob.  9  ;  (1839)  9 
A.  &  E.  1  ;  2  P.  &  D.  1  ;  3  Jur.  905  ;  (1840)  11  A.  &  E. 
253  ;  8  Dowl.  148,  522  .  .  161,  185,  186,  311,  489,  490,  502 

v.  Onwhyn,  5  B.  &  C.  173  ;  7  D.  &  R.  625  ;  2  C.  &  P.  163     .  8 

v.  Tarte  and  others,  4  A.  &  E.  1016  .  .  171,  256,  263 

Stocken  v.  Collin,  7  M.  &  W.  515  ;  10  L.  J.  Ex.  227       .  .  .    .     600 

Stockley  v.  Clement,  4  Bing.  162  ;  12  Moore,  376      .  .  .       128,  230 

Stokes  v.  Arey,  8  Jones,  46  .  .  .  .  .  .57,  123 

v.  Stokes,  Weekly  Notes,  1887,  p.  116 .  .  .  .         .     527 

Stone  v.  Cooper  (1845),  2  Denio  (N.  Y.)  293  .  .  .  73,  112 

v.  Smalcombe,  Cro.  Jac.  648      ......     122 

Stoner  v.  Audeley,  Cro.  Eliz.  250  .  .  .  .  .  .    .     124 

(61) 


Lxii  TABLE  OF  CASES. 

[*lxii.]  (The  paging  refers  to  the  [*]  pages.) 

Sto— Tay.  page 

Stooke  r.  Tavlor,  5  Q.  B.  D.  569  ;  49  L.  J.  Q.  B.  857  ;  29  W.  R.  49  ; 

43  L.  T.  208     .     .     .     .     .     .         .  371 

Storey  v.  Challands,  8  C.  &  P.  234  .  .  .        206,  209,  510,  299 

v.  Wallace,  11  111.  51       .  .  .  .  .  .         .     159 

Strader  v.  Stryder,  67  111.  404         .  .  .  .  .  .    .     156 

Strange  v.  Dowdney,  38  J.  P.  724,  756  ....         .     528 

Strauss  v.  Francis,  (No.  1),  4  F.  &  F.  939,  1107  ;  15  L.  T.  674    .      48,  573,  578 

v.      L.  R.  1  Q.  B.  379;  35L.  J.Q.  B.  133;  12  Jur.  N.  S. 

486  ;  14  W.  R.  634  ;  14  L.  T.  326  ;  30  J.  P.  421  ....     578 
Street  v.  Licensed  Victuallers'  Society,  22  W.  R.  553       .  .  99,  263 

Strode  v.  Holmes  (1651),  Style,  338  ;  1  Roll.  Abr.  58  .  .  .         .       72 

Strong,  Be  (C.  A.)  32  Ch.  D.  342 ;  55  L.  J.  Ch.  D.  553  ;  34  W.  11.  614  ;  55 

L.  T.  3 .  .     500 

Stuart  v.  Lovell,  2  Stark.  93      .  .  .  .49,  98,  277,  310,  576 

Stubbs  v.  Marsh,  15  L.  T.  312        3  .  .  .  .  29,  407 

Stuckley  v.  Bullhead,  4  Rep.  16  .  .  .  .         .       72 

Studdert  v.  Grosvenor,  33  Ch.  D.  528  ;  55  L.  J.  Ch.  689 ;  34  W.  R.  754 ; 

55  L.  T.  171  ;  50  J.  P.  710        .  .  .  .  .  373,  610 

Sturgeon  (Lessee)  v.  Douglass,  10  Ir.  L.  R.  128  n.  .  .         .     497 

Sturton  (Lord)  v.  Chaffin  (1563),  Moore,  142  ...  .     126 

Subbaiyar  v.  Kristnaiyar  and  another,  I.  L.  R.  1  Madras,  383  .     15,  335 

Suego's  Case,  Hetl.  175  ....  .  .78 

Summers  v.  City  Bank,  L.  R.;   9  C.  P.  580  ;  43  L.  J.  C.  P.  261  30,  80,  398 

Surman  v.  Shelleto  3  Burr,  1688        ......       82 

Surrey,  Be,  the  High  Sheriff  of,  2  F.  &  F.  234  .  %  .  .  495,  501 

Sutclfffe  v.  Smith,  2  Times  L.  R.  881  .  .  .  .  .     367 

Sutton  v.  Clarke,  6  Taunt,  229     .  .  .  .  .  .       .     516 

v,  Johnstone  (1785),  1  T.  R.  493  .  .  .  .     195 

v.  Plumridge,  16  L.  T.  741  .  .  .  .  .       .     213 

v.  South  Eastern   Rail.    Co.,  L.  R.  1  Ex.   32  ;  4  H.  &  C.  325  ;  35 

L.  J.  Ex.  38  ;  14  W.  R.  133  ;  11  Jur.  N.  S.  935  ;  13  L.  T.  438  .     361 

Swann  v.  Vines,  Nov.  1877,  cited  37  L.  T.  469  .  .  .     563 

Sweeney  v.  Baker,  13  West  Virginia  R.  158      .  .  .  44 

Sweetapple  v.  Jesse,  2  N.  &  M.  36  ;  5  B.  &  Ad.  27    .  .  .        114,  122 

Swithin  et  ux.  v.  Vincent  etux.,  2  Wills.  227     ....    404,420 

Sydenham  v.  Man,  Cro.  Jac.  407        ......     565 

Sykes  v.  Sykes,  L.   R.  4  C.  P.   645  ;  38  L.  J.  C.  P.  281  ;  17  W.  R.  799  ; 

20  L.  T,  663 527 

Symington,  The  William,  10  P.  D.  1  ;  51  L.  T.  461     .  .  .       .     370 

Symmons  v.  Blake,  2  C.  M.  &  R.  416  ;  1  M.  &  Rob.  477  ;   4  Dowl.    263  ; 

1  Gale,  182 98,  277,  310 


Taaffe  v.  Downes,  3  Moo.  P.  C.  C.  36  n.  .  .  .  .  .     188 

Tabart  v.  Tipper,  1  Camp.  350   .  .  .  .  .     32,  34,  530,  564 

Tait  v.  Culbertson,  57  Barb.  9  .  .  .  .  .420 

Talbot  v.  Case,  Cro.  Eliz.  823      .  .  .  .  .  .       .       63 

Talbutt  v.  Clark  and  another,  2  M.  &  Rob.  312  .  .  160,  314,  315 

Tardrew  v.  Brook,  5  B.  &  Ad.  880  .  .  .  .  .       .     578 

Tarlton  and  others  v.  McGawley,  Peake,  204,  270  .  .  .  16,  148 

Tarpley  v.  Blabey,  2  Bing,  N,   C.  437 ;  2  Scott,    642  ;  1   Hodges,  414  ; 

7  C.  &  P.  395  ....  6,  156,  280,  318,  413,  560 

Tasburgh  v.  Day,  Cro.  Jac.  484         .  .  .  .  .  .139 

280 

73 

368 

64 

204 


Tate  v.  Humphrey,  2  Camp.  73  n 
Tavlor  v.  Carr,  3  Up.  Can.  Q.  B.  Rep.  306  . 
- —   v.  Cass,  L.  R.  4  C.  P.  614  ;  17  W.  R.  860  ;  20  L.  T.  667 

e.  Hall,  2  Str.  1189      ..... 

v.  Hawkins,  16  Q.  B.  308 ;  20  L.  J.  Q.  B.  313  ;  15  Jur.  746 


236,  272,  284,  289,  572 
(62) 


TABLE  OF  CASES. 


lxiii 


(The  paging  refers  to  the  [*]  pages.) 


[*  lxiii.] 


139  ;  8  Jur.  N 


56  L.  J 
R.  515 


1!) 


PAGE 

.  72 
.  65, 127 
65,  61),  76 
.  .  76 
.  190 
.  21,  94 
55,  58,  126 
.  .  82 
302,  3:33 
.  549 
60,  86 
S. 


Q.  B. 


,  189 
261 

578 

519 

82 
.  522 

605  ;  28  W.  R.  983  ; 
340,  313,  362,  363,  365,  520 
98,  108,  640 
.  56,  320 
'.  48,  49 
.  347 
.  .  80 
3,  20 


15  Jur.  285 


Tay— Tra. 

Taylor  ».  How,  Cro.  Eliz.  861 ;  1  Vin.  Abr.  464 

Vm  Perkins  (1607),  Cro.  Jac.  144 ;  1  Roll.  Abr.  44 

v.  Perr  (1607),  1  Roll.  Abr.  44 

v.  Starkey,  Cro.    Car.  192 

„.  Swintou  (1824),  2  Shaw's  Sc.  App.  Cas.  245 

Teacy  v.  McKenna,  Ir.  Rep.  4  C.  L.  374  . 

Tempest  v  Chambers,  1  Stark.  67      . 
Terry  v.  Hooper,  1  Lev.  115 

Terwilli?er  v.  Wands,  3  Smith  (17  N.  Y.  R.),  54     . 
Tetley  v.  Easton,  25  L.  J.  C.  P.  293        . 
Theyer  v.  Eastwick,  4  Burr.  2032      . 
Thomas  v.  Churton,  2  B.  &  S.  475 ;  31  L.  J.  Q.  B. 
795        ...... 

r.  Croswell,  7  Johns.  (N.  Y.  Supr.  Ct.),  264 

«•  Exeter  Flying  Post   Co.,    18  Q.  B.    D.   822 

313  ;  35  W.  R.  594  ;  56  L.  T.  361  ;  3  Times  L 

v.  Hamilton,   Duchess  Dowager  of  (C.   A.),    17  Q.  B.  D.  592  ; 

55  L.  J.  Q.  B.  555  ;  35  W.  R.  22  ;  55  h.  T.  219,  385 

v.  Jackson,  3  Bing.  104  ;    10  Moore,  425 

v.  Rumsey,  6  Johns.  (N.  Y.),  26      . 

v.  Williams,  14  Ch.  D.  864  ;  49  L.  J.  Ch. 

43  L.  T.  91  .  .  .  .      149 

Thompson  v.  Bernard,  1  Camp.  48 

v.  Nye,  16  Q.  B.  175  ;  20  L.  J.  Q.  B.  85 

v.  Shackell,  Mo.  &  Mai.  187 

v.  Stanhope,  Ambler,  737  .... 

v.  Twenge,  2  Roll.   Rep.  433  ...  . 

Thorley  v  Lord  Kerry,  4  Taunt.  355  ;  3  Camp.  214  n. 

Thorley's  Cattle  Food  Co.  v.  Massam  (interloc),  6  Ch.  D.  582  ;  46  L.   J. 

Ch.  713         .  .  .  150,  340,  341,  339,  359 

(before  Malins,   V.-C.)   14   Ch.   D.    763  ;  28  W.   R. 

295  ;  41  L.  T.  542  .  .      150,  340,  341,  349,  359 

(C.  A.)  14  Ch.  D.  781  ;  28  W.  R.  966  ;   42  L.  T.  851    .  150, 

Thorn  v.  Blancbard,  5  Johns.  (Amer.),  508  . 
Thorne  v.  Alice  Durham  (1606),  Noy,  117 
Thornton  v.  Howe,  (1862),  31  Beav.  14 

v.  Stephen,  2  M.  &  Rob.  45     . 

Thorpe  v,  Macaulay,  5  Madd.  230      . 
Threlfall  v.  Wilson,  8  P.   D.  18  ;  48  L.  T.  238 
Thurman  v.  Wild,  11  A.  &  E.  453    . 
Tibbott  v.  Haynes  (1590),   Cro.  Eliz.  191 
Tibbs  v.  Brown,  2  Grant's  Cas.  (Penns.)  39  . 

v.  Smith,  3  Salk.  325  ;  Sir  T.  Raym.  33  . 

Tichborne  v.  Mostyn,  L.  R.  7  Eq.  55,  n.  ;  15  W.  R.  1072  ; 

v.  Tichborne,  39  L.  J.  Ch.  398 ;  18  W.  R.  621  ; 

Tidman  v.  Ainslie  (1854),  10  Ex.  63 

Tighe  v.  Cooper,  7  El.  &  Bl.  639;  26  L.  J.  Q.  B.  215;  3  Jur. 

v.  Wicks,  33  Up.  Can.  Q.  B.  Rep.  470 

Tilk  v.  Parsons,  2  C.  &  P.  201     . 

Titus  v.  Sumner,  45  N.  Y.  266  .... 

Todd  v.  Hastings,  2  Sand.  307     . 

0.  Hawkins,  2  M.  &  Rob.  20  ;  8  C.  &  P.  88  . 

Tomlinson  v.  Brittlebank,  4  B.  &  Ad.  630  ;  1  N.  &  M.  455 
Tompson  v.  Dashwood,    11  Q.  B.  D,  43  ;  52  L.  J.   Q.  B. 

943  ;  48  J.  P.  55     .  .  .  .  .         155,  228,  247,  273,  287 

Toogood  v.  Sprying,  1  C.  M.  &.  R.  181  ;  4  Tyr.  582  .  218,  231.  247,  288 
Townshend  (Lord)  v.  Hughes  (Dr.),  2  Mod.  150  .  75,  96,  126,  136,  295,  306,  583 
Toze  v.  Mashford,  6  Ex.  539  ;    20  L.  J.  Ex.  225  .  .  .58,  126 

Tozier  and  wife  v.  Hawkins  (C.  A.)  15  Q.  B.  D.   650,  680  ;  55  L.  J. 

Q.  B.  152  ;  34  W.  R.  233 409,  519 

Trail  v.  Denham,   Times,  May  4th,  1880  .  .  .  .      .      98 

(63) 


340,  341 

349,  359 

.  193 

,          . 

.   60 

.  463 

•    . 

.  573 

( 

.  554 

.  396 

* 

.  540 

,          t 

54,  56 

.  398 

.  123 

17L.  T.  5 

.  496 

22  L.  T.  55  . 

.  166 

N.'S.  716' 

174, 539 

68,  74 

.  303 

.  333 

.   81 

212,  240,' 

274,  645, 

55,  105 

425  ;  48  L. 

T. 

lxiv  TABLE  OF  CASES. 

[*lxiv.]  (The  paging  refers  to  the  [*]  pages.) 

Tra— "Wak.  tage 

Traske's  Case  (1618),  Hobart,  236     ....  446,450,456 

Treat  v.  Browning,  4  Connecticut,  408    .  .  .  .  .     165 

Trenton  Insurance  Co.  v.  Perrine,  3Zab.  402  (Zabriskie,  New  Jersey),      .     416 
Tripp  v,  Thomas,  3  B.  &  C.  427  ;  1  C.  &  P.  477     .  .  294,  520,  570 

Trotman  v.  Dunn,  4  Camp.  211  .  .....    101,193 

Trumbull  v.  Gibbons,  3  City  Hall  Recorder,  97      .  .  .  153,154 

Tuam  (Archbishop  of)  v.  Robeson,  5  Bing,  17;  2  M.  &  P.  32  .  26 

Tucker  v.  Lawson,  2  Times  L.  R.  593         .  .  158,  31:5,  315,  517,  547 

Tucker's  ( !ase,  Ry.  &  M.  134      .  .  .  .  .  .       .     601 

Tunnicliffe  v.  Moss,  :!  ('.  &  K.  83     .  .  .  306,  309,  331,  332,  333 

Turnbull  v.  Bird,  2  F.  A  F.  508  .  .  .  .  .  .     43,  271 

v.  Forman,   15  Q.  B.  D.  234  ;   54  L.  J.  Q.  R.  489  ;  33  W.  R. 

768  ;  53  L.  T.  128 400 

Turner,  E.r  parte,  3  Mont,  D.  &  De  G.  523,  551,  558     .  .  .       .     497 

v.  Heyland,  4  C.  P.  D.  432  ;48  L.  J.  C.  P.  535  ;  41  L.  T.  556,  30s.  588 

r.  Meryweather,  7  C.  B.  251  ;  18  L.  J.  C.    P.  155  ;  13  Jur.  683  ; 

(Exch.  Ch.)  19  L.  J.  C.  P.  10  .  .        129,  131,  556 

v.  Ogden,  2  Salk,  696:  6  Mod.  104  ;  Holt,  40  .       54,  56,  61,  86 

v.  Stirling  (1671),  2  Ventr.  26  .  .  .  .141 

v.  Sullivan  and  others.  6  L.  T.  130  .  .  .       .     256 

Tuson  v.  Evans,  12  A.  &  E.  733  ;  5  J.  P.  209  ..  .         231,  285 

Tutchin's  Case,  St.  Tr.  527  ;  14  How.  St,  Tr.  1095  ;  2  Lord  Ravm.  1061  ; 

1  Salk.  50  ;  6  Mod.  268  ;  Holt.  424  .  .  .  103,  424,  433,  595,  605 
Tutty  r.  Alewin,  11  Mod.  221  .  .  .  .  .  71,  77 
Twvcross  v.  Grant  (C.  A.),  4  C.  P.  D.  40  ;  47  L.  J.  Q.  B.  676  ;  27  W.  R. 

"87  ;  39  L.  T.  618        .  .  .  .  .  .  .       .     408 

Underwood  v  Parks,  2  Str.  1200      .  .  .  .  .  .312 

Upton  v.  Pinfold,  Corny n,  267     .  .  .  .  .  .     119 

UslU  lm  SJfe-  v     )    3  C.  P.  D.  319  ;  47  L.  J.  C.  P.  323  ;  26  W.  R,  371  ; 

v   Clarke     '     \  38  L'  T'  65  '  41  J"  P'  ~43  '  '     249'  25°'  861,  252 

Vanderzee  v.  McGregor,  12  Wend.  546  .  .  .  .       .     273 

Van  Sandau,  Ex  parte,  1  Phillips,  445  ....  503 

v.  Turner.  6  Q.  B.  773         .  .  .  .  .       .     503 

Vanspike  a.  Cleyson  (1597),  Cro.  Elix.  541  ;  1  Roll.  Abr.  67         .  214,  218 

Vaughan  v  Ellis,  Cro.  Jac.  213    .  .  .  .  .  .     140 

Vaux's  Case,  4  Rep.  45a     .  .  .  .  .  .  .     .     606 

Vernon  v.  Vernon,  40  L.  J.  Ch.  118  ;  19  W.  R.  404  ;  23  L.  T.  697         496,  501 
Vessey  v.  Pike,  3  C.  &  P.  512  .  .  .  .      313,  319,  539 

Vicars  v.  Wilcox,  8  East,  1  ;  2  Sin.  L.  C.  553  (8th  edit.)        .  327,  328,  329 

v.  Worth,  1  Str.  471  ....  .  60,  86,  133 

Victoria  Assemblv  (Speaker  of)  v.  Glass,  L.  R.  3  P.  C.  560  ;  40  L.  J.  P.  C. 

17  ;  24  L.  T.  317     .  .  .  .  .  .  .  .     491 

Villers  r.  Monsley,  2  Wils.  403     .  .  .  .  .  19,  20,  64 

Vine,  Ex  i  arte,  In  re  Wilson,  8  Ch.  D.  364  ;  26  W.  R.  582  ;  38  L.  T.  730    407 
A'ines  v.  Serell,  7  C.  &  P.  163  .  .  .  .  .     309 

Vivian  v.  Willet,  Sir  T.  Raym.  207  ;  3  Salk.  326  ..  .    80,  125 

Waddell  v.  Blockey  (C.  A.),  10  Ch.  P».  416  ;  27  W.  R.  233  ;  40  L.  T.  286    581 
Wadsworth  v.  Bentley,  23  L.  J.  G.  B.  3  ;  1  B.  C.  Cases  (L.  &  M.)  203  ; 

2  C.  L.  R.  127;  17  Jur.  1077 522 

Wainford  v.  Heyl,  L.  R.  20-Eq.  321  ;  44  L.  J.  Ch.  567  ;  23  W.  R.  848  ; 

33  L.  T.  155      .  .  .  .  .  .  .  .     .     400 

Wakeley  v.  Cooke  and  another,  16  M.  &  W.  822  ;  16  L.  J.  Ex.  225  .     523 

V.  Cooke  A  Healey,  4  Ex.  511  ;  19  L.  J.  Ex.  91      .     28,  127,  172,  538 

V.  Healey,  7  C.  B.  591  ;  18  L.  J.  C.  P.  241         .  .         20,  27,  130 

v.  Healey  &  Cooke,  4  Ex.  53;  18  L.  J.  Ex.  426      .  .         .      66 

v.  Johnson,  Ry.  &  M.  422  .  .  .  .  .    .     318 

(64) 


TABLE  OF  CASES.  lxv 

(The  paging  refers  to  the  [*]  pages.)  [*lxv.] 

Wal-Wei  PAGE 

Walcot  v.  Walker,  7  Ves.  1     .  .  .  .  .  .  .8 

Waldegrave  (Sir  William)  v.  Ralph  Agas,  Cro.  Eliz.  191  ;  1  Roll.  Abr.  75      56 

Walden  v.  Mitchell,  2  Ventr.  265  .  ...       59,  72 

Walker  v.  Brogdeu,  19  C.  B.  N.  S.  65  ;  11  Jur.  N.  S.  671  ;  13  W.  R.  809  ; 

12  L.  T.  495    ...  .       26,  38,48 

v.    17  C.  B.  N.  S.  571 557 

v.  Clarke,  56  L.  T.  Ill  ;  3  Times  L.  R.  297  .  .  .147 

Wallace,  Be,  L.  R.  1  P.  C.  283  ;  36  L.  J.  P.  C.  9  ;  15  W.  R.  533  ;  14  L.  T.  286    504 

v.  Carroll,  11  Ir.  C.  L.  R.  485     .  ...     205 

Waller  v.  Loch  (C.  A.),  7  Q.  B.  D.   619  ;  51  L.  J.  Q.  B.  274  ;  30  W.  R. 

18  ;  45  L.  T.  242  ;  46  J.  P.  484    .  .  .         204,  208,  213,  214,  221 

Walls  or  Watts  v.  Rymes,  2  Lev.  51  ;  1  Vent.  213  ;  3  Salk.  325  .    62,  123 

Walter  v.  Beaver,  3  Lev.  166  ;  Sir  T.  Jones,  235  ;  2  Ventr.  172  ;  3  Salk.  325  .     582 
Ward  v.  Morse,  Re  Brown  (C.  A.),  23  Ch.  D.    377  ;  52   L.   J.   Ch.  524  ;  31 

W.  R.  936  ;  49  L.  T.  68  .  .  .  .  •     •     371 

v.  Reynolds  (1714),  Pasch.  12  Anne  B.  R  ;  cited  Cowp.  278  97,  127 

v.  Sinfield,  49  L.  J.  C.  P.  696  ;  43  L.  T.  253  .  .  .     .     573 

v.  Smith,  6  Bing.  749  ;  4  M.  &  P.  595  ;  4  C.  &  P.  302  .      30,  154,  417,  559 

Weeks,  7  Bing.  211  ;  4  M.  &  P.  796,      62,  84,  165,  168,  304,  331,  332,  333 

Warden  v.  Bailey,  4^Taunt.  67  .  .  .  .  .  .     195 

Waring  v.  M'Cal'din  (1873),  7  Ir.  R.  C.  L.  282     .  .  .  227,  247 

v.  Pearman,  32  W.  R.  429  ;  50  L.  T.  633      .  .  .  .     371 

Warman  v.  Hine,  1  Jur.  820  ;  1  J.  P.  346  .  .        20,  26,  27,  171,  280 

Warne  v.  Chadwell,  2  Stark.  457        ....  277,  576 

Warr  v.  Jolly,  6  C.  &  P.  497  .  .  .  .  .  236,  237 

Warren  v.  Norman,  Walk.  (Mississippi),  387  .  .  69 

v.  Warren,  1  C.  M.  &  R.  250  ;  4  Tyr.  850,     154,  200,  246,  283,  287,  559 

Warton  v.  Gearing,  1  Victoria  L.  R.  Cases  at  Law,  122  .  .     67,  76 

Warwick  v.  Foulkes,  12  M.  &  W.  508  .  .  .    178,  278,  311,  569 

Wason,    Ex  parte,   L.  R.  4  Q.  B.  573 ;  38  L.  J.   Q.   B.  302  ;  40  L.  J. 

M.  C.  168 :  17  W.  R.  881  .  .  .  .     185 

v.  Walter,   L.  R.  4  Q.  B.   73  ;  8  B.  &  S.   671  ;  38  L.  J.  Q.  B. 

34 ;  17  W.  R.  169  ;  19  L.  T.  409  ;  32  J.  P.  773  ;  33  J.  P.  149  .       32 

40,  43,  186,  242,  248,  251,  264,  265,  635 
Waterer  v.  Freeman,  Hob.  266      .  ...  .  .  •     •     143 

Waterfield  v.  Chichester  (Bishop  of),  2  Mod.  118  .     .  .  .  .     261 

Watkin  v.  Hall,  L.  R.  3  Q.  B.  396  ;  37  L.  J.  Q.  B.  1 25  ;  16  W.  R.  857  ; 

18  L.  T.  561  ;  32  J.  P.  485      .  .  .      100,  162,  165,  166,  175,  177 

Watson,  In  re,  Shaw's  Cases  (Scotch),  No.  6  .  .  .  497 

v.  Gierke,  Comb.  138        .  .  .  .  .  .     .       86 

v.  McCann,  6  L.  R.  Ir.  21 527 

v.  Reynolds,  Moo  &  Mai.  1  .  .  .  .141,  144,  230 

v.  Trask,  6  Ohio,  531  ....  19,  146,  348 

v.  Vanderlash,  Hetl.  71     .  .  ■  .  .  .      77,  78 

Watt  v.  Ligertwood  and  another,  L.  R.  2  Sc.  App.  361         .  .  .     500 

Watts  v.  Fraser  and  another,   7  C.  &  P.  369  ;  7  Ad.  &  E.  223  ;  6  L.  J. 

K.   B.   226  ;  1  M.  &  Rob.  449  ;  2  N.  &  P.  157  ;  1  Jur.  671  ; 

W.  W.  &  D.  451  .  .  .  -  153,  160,  318,  413,  559 

v.  Rymes,  2  Lev.  51  ;  1  Ventr.  213  ;  3  Salk.  325  .  .         62,  123 

Weatherston  v.  Hawkins,  1  T.  R.  110       .  .  .  .  .     .     236 

Weaver  v.  Lloyd,  2  B.  &  C.  678  ;  1  C.  &  P.  295  ;  4  D.  &  R.  230      .       170,  171 

539,  572 
Web  v.  Poor,  Cro.  Eliz.  569  .  .  .  .  .  .     .       63 

Webb  v.  Beavan,   11   Q.  B.  D.   609  ;  52  L.  J.  Q.  B.   544  ;  49  L.  T.  201  ; 

47  J.  P.  488  .  .  ...  .  •  54,  55,  105 

v.  East  (C.  A.),  5  Ex.  D.  23,  108  ;  49  L.  J.  Ex.  250  ;  28  W.  R.  229, 

336  ;  41  L.  T.  715  ;  44  J.  P.  200         .  .  .  .  554,  555 

Webster  v.  Friedeberg  (C.  A.),  17  Q.  B.  D.  736  ;  55  L.   J.  Q.  B.  493  ; 

34  W.  R.  728  ;  55  L.  T.  49,  295    .  .  .  .  .  582 

Wedmore  v.  Scovel,  3  Edw.  Ch.  R.  515  .  .  .  .  .     .     348 

Weir  v.  Hoss,  6  Alabama,  881  ......     155 

E.  Lib.  &  Slan.  (65) 


lxvi  TABLE  QF  CASES. 

I*  lxvi]  (Tlie  paging  refers  to  the  [*1  pages.) 

Wei-Wil.  i'age 

Weiss  v.  Whittemore,  38  Michigan,  366  .  .  .  .  .     .    309 

Weldona.  De  Bathe  (C.  A.),  14  Q.  B.   I).  339;  54  L.  J.  Q.  B.  113;  33 

W.  R  328  ;  53  L.  T.  520  .  .  .  .84,  301 

v.  Johnson,  Times,  May  27th,  18S4  .  .  .  .  42,    46 

v.  Neal,  J'.'1  W.  11.  828 396 

v.  Rout-ledge  and  Sons  (not  reported)       .  .  .  .     .     (555 

v.  Weldon,  10  P.  D.  72 ;  54  L.  J.  P.  &  D.  26,  60  ;  33  W.  R.  370, 

427  ;  52  L.  T.  233  ;  49  J.  P.  517  .  .  .     502 

v.  Winslow,  Times,  March  14th— 19th,  1884        .  .21,  210,  234 

v.       (C.   A.).  13  Q.  B.  D.   784  ;  53  L.  J.   Q.   B.   528  ;  33 

W.  R.  219;  51  L.  T.  643 396,  397 

Wellesley's  (Mr.  Long)  Case,  "2  Russ.  &  My.  639  .  .  .  498.  512 

Wells  v.  Webber,  2  F:  &  F.  715 27 

Welply  r.  Buhl  (C.  A.),  3  Q.  B.  B\  80,  253  ;  47  L.  J.  Q.  B.  151  ;  26  W. 

R.  300;  38  L.  T.  1 15    .     .     .     .     .     .     .  585 

Wenman  v.  Ash,  13  C.  B.  836  ;  22  L.  J.  C.  P.  190  ;  17  Jur.  579  ;  1  C.  L. 

R.  592 153,  269 

Western  Counties  Manure  Co.*«.  Lawes  Chemical  Manure  Co.,  L.  R.  9 

Ex.  218  ;  43  L.  J.  Ex.  171  ;  23  W.  R.  5  .  31,  92,  147—150,  662-666 

Weston  r,  Beeman  and  another,  27  L.  J.  Ex.  57  .  .  .  .     412 

v.  Dobniet,  Cro.  Jac.  432         .  .  .  .  .  .     193 

Wetherhead  v.    Arniitage,    2  Lev.    233  ;   3   Salk.    328  ;  Freem.    277  ;   2 

Show.  18  .  .  .  .  .  .  R9,  79,  85 

Whulley's  Case,  L.  R,  9  Q.  B.  219  ;  12  Cox,  C.  C.  358  .         .  497,  501,  512 

Wharton  v.  Brook,  Ventr.  21  .  .  ...  .  .79,85 

Wheatcroft  v.  Mousley,  11  C.  B.  677  .  .....     557 

Wheeler  ».  Haynes,  9  A.  &  E.  286.  n  ;  1  P.  &  D.  55  ;  1  W.  W.  &  H.  645     103 

v.  Poplestone  (1624)  1  Rolle  Abr.  72  .  .  .57 

Whistler  b.  Ruskin,  Times,  Nov.  20  and  27,  1878      .  .  .  35,  49 

White  v.  Tyrrell  (2),  5  Ir.  C.  L.  R.  498      .  .  .  .  .     539 

et  ux.  t.  Harwood  et  ux.,  Style,  138;  Vin.  Abr.  Baron  &  Feme, 

Aa.  .  .  .  .  .  .  .  .  .     404 

Whiteley  v.  Adams,  15  C.  B..N.  S.  392 ;  33 L.  J.  C.  P.  89  ;  10  Jur.  N.  S. 

470  ;  12  W.  R.  153  ;  9  L.  T.  483  .  199,  217,  219,  237,  241,  274,  278,  525 

Whitfield  r.  Powel,  12  Mod.  284  .  .  .  .  .  .       65 

and  others  v.  S.  E.  Ry.  Co.,  El.  Bl.  &  El.  115;  27  L.  J.  Q.  B. 

229  ;  4  Jur.  N.  S.  688  .  .  .  .  .  .     152,  286,  417 

Whittington  v.  Gladwin,  5  B.  &  C.  180  ;  2  C.  &  P.  146        .  .  80,  81 

Wieman  v.  Mabee,  45  Mich.  484  ;  40  Amer.  R.  477  .     227 

Wilby  v.  Elston,  8  C.  B.  142  ;  18  L.  J.  C.  P.  320  ;  7  D.  &  L.  143  ;  13 

Jur.  706        .  .  .  .  .  .  .  .       87 

v.  Henman,  2  Cr.  &  M.  658  .  .  .  .  .    .     556 

Wild  v.  Tompkinson,  5  L.  J.  K.  B.  265        .  .  .  .  .     405 

Wiley  v.  Campbell,  5  Monroe  (19  Kentucky),  396  .  .  .     123 

Wilk's  Case,  1  Roll.  Abr.  51  .  .  .  .  .  .  .108 

Williams  v.  Beaumont,  10  Bine:.  2«0  ;  3  M.  &  Scott,  705  .  30,  416,  417 

v.  Gardiner,  1  M.  &  W.  245  ;  1  Tyrw.  &  Gr.  578  ;2  C.  M.  &  R. 

78 130 

v.  Hill,  19  Wend,  305  .  .  .  .  .  .       .     301 

■      v.  Johns  (1773),  1  Mer.  303,  n.        .  .  .  .  .495 

r.  Magyer,  Times,  March  1st,  1883      .  .  .  .       .       63 

v.    Salisbury   (Bishop   of)   Wilson  v.   Fendall   (1864)  2  Moore 

P.  C.  N.  S.  375  ;  Brod.  &  Fremantle,  247  .  .  .     449 

v.    Spowers   and   others,    Australian     Law     Times,   May    13th, 

1882,  p.  118       "  .             .             .  •             •  •       •       33 

V.  Stott,  1  C.  cv  M.  675  ;  3  Tyr.  688  .             .  55,  64 

William's  Case,  2  Rolle  R.  88       .             .             .  .             .  .       .     478 

Williamson  v.  Freer,  L.  R.  9  C.   P.  393  ;   43  L.  J.  C.  P.  161  ;  22  W.  R, 

878  ■  30  L    T.  8  2  .  .  .  .  .     152,  286,  288,  559 

Willis  v.  Maclachlan,  1  Ex.  T).  376  ;  45  L.  J.  Ex.  689  ;  35  L.  T.  218        .     511 
Willmett  r.  Rainier  and  another,  8  C.  &  P.  695  .  .  .     174,  178 

Wilson,  In  re,  Ex  parte  Vine,  8  Ch.  D.  364  ;  26  W.  R.  582  ;  38  L.  T.  730    407 

(66) 


549 

528 


TABLE  OF  CASES.  lxvii 

(The  paging  refers  to  the  [*]  pages.)  [*  lxvii.] 

T^fcollins,  5  C.  &  P.  373  .  •  245,  280,P289 

c  Fendall,  Williams  v.  Bishop  of  Salisbury  (1804),  2  Moore,  P.   C. 

N   S   375  ;  Brod.  &  Fremantle.  247  .  .  449 

»   Fitch,  41  Cal.  363 47,  315 

D   Goit,  3  Smith  (1?  N.  Y.  R.),  445         .  .        15,  19,  302,  330,  399 

r   Reed  and  others,  2  F.  &  F.  149     .  .  .  .        37,  43,  421 

„   Rohinson,  7  Q.  B.  68  ;  14  L.  J.  Q.  B.  196  ;  9  Jur.  726        .     178,  212, 

278,  311,  569 
Wilson's  (Cams)  Case,  7  Q.  B.  984  .  .      495,  500,  502,  504,  507,  508 

Wilton  r    Brignell,  W.  N.  1875,  p.   239  ;    1  Charley,  105  ;    Bitt.   56  ;    20 

Sol.  J.  121  ;  60  L.  T.  Notes,  104  .  .  .  .  547,  553 

Wingard  v.  Coxe,  W.  N.  1876,  p.  106  ;  Bitt.  144  ;  20  Sol.  J.  341  ;  60  L.  T. 

Notes,  304 534 

Wisdom  o.  Brown,  1  Times  L.  R  412     .  .  .  .  43,  241,  296,  579 

Wiseman  v.  Wiseman,  Cro.  Jac.  107  .  132 

Wolverhampton  New  Waterworks  Co.  v.  Hawksford,  5  C.  B.  N.  S.  703  ; 

28  L.  J.  C.  P.  198  .  .    _ 

Wood  v.  Adam,  6  Bing.  481         .  .  .  •  •  •       • 

v.  Brown,  6  Taunt.  169  ;  1  Marsh.  522  .  .  .  .528 

v.  Gunston,  Style,  462        .  .  .  .  •  •       ■     190 

v.  Merrick  (1626),  1  Roll.  Abr.  73 -r>7 

Woodard  v.  Dowsing,  2  Man.  &  By.  74  .  .  -  .27,  '-87 

Woodfall's  Case,  5  Burr.  2661 •     607 

Wood-ate  r.  Ridout,  4  F.  &  F.  202  .        28,  36,  45,  46,  114,  257,  381,  5b6 

Woodruff  v.  Woolcy,  1  Vin.  Abr.  463  ....  72 

Woods  v.  Woods,  2  Curt.  516 •       ■     448 

Woodward  v.  Lander,  6  C.  &  P.  548  .  .  .  •  218,  226,  284 

Woolmer  v.  Latimer,  1  Jur.  119  .  .  .  •  •       •     ?„: 

Woolnoth  d.  Meadows  (1804),  5  East,  463  ;  2  Smith,  28  .     56,  97,  124,  164 

Wren  and  another  v.  Weild,  L.  R.  4  Q.  B.  730  ;  10  B.  &  S.  51  ;  38  L.  J. 

Q.  B.  ss,  32  r  ;  20  L.  T.  277  ;  34  J.  P.  19                .            .            .  146,  544 

Wrenmim's  Case,  Pop.  135      .             ...             •             •             •  •     493 

Wright  ».  Clements,  3  B.  &  Aid.  503       .             .             .             .             .  .     528 

r.  Moorhouse,  Cro.  Eliz.  358              .             .             .             •  .72 

v.  Wood"-ate,  2  C.  M.  &  R.  573  ;  1  Tyr.  &  G.  12  ;  1  Gal.  329  .     211, 

281,  562 
Wyatt  v.  Gore,  Holt,  N.  P.  299  .  .    315,  321,  322,  327,  518,  565,  577 

Yarborough  v.  Bank  of  England,  16  East,  6  .  .  -416 

Yardley  v.  Ellis,  Hob.  8 ?6 

Yarmouth  (Mayor  of),  Ex  parte,  1  Cox,  C.  C.  122  .  .  .  431,  505 
Yates  v.  Lansing,  5  Johns.  283  ;  9  Johns.  395  (Amer.)  .  .  .  189 
V.  Reg.  (C.  A.),  14  Q.  B.  D.  648  ;  54  L.   J.   Q.  B.  258  ;    33  W.   R. 

482  ;  52  L.  T.  305  ;  49  J.  P.  436  ;  15  Cox,  C.  C.  686  ;  1  Times  L.  R. 

193  ....  ...  384,  590, 610 

Yates  et  ux.  v.  Reed  et  ux.  4  Blackf .  (Indiana),  463  .  .  5,  406 

Yetts  and  another  v.  Foster  (C.  A.),  3  C.  P.  D.   437  ;    26  W.   R.  745 ;    38 

L.  T.  742 581 

York  v.  Johnson,  116  Mass.  282  .  .  .  .  •  .       .     101 

v.  Pease,  2  Gray  (68  Mass.  432  ....  243,  273 

Young  d.  Hickens,  6  Q.  B.  606  .  .  .  .  •  -147 

and  others  v.  Macrae,  3  B.  &  S.  264  ;  32  L.  J.  Q.   B.  6  ;  11    W.  R. 

63  ;  9  Jur.  N.  S.  539  ;  7  L.  T.  354  ;  27  J.  P.  132        .     14,  31,  148,  149,  150 
Yrisarri  v.  Clement,  4  L.  J.  (Old  S.)  C.  P.  128  ;  3  Bing.  432  ;    11  Moore, 

308  ;  2  C.  &  P.  223  .  ..  .  .  .  •     23.  66,  558 

Zenobio  v.  Axtell,  6  T.  R.  162  ;  3  M.  &  S.  116  .  .         109,  529,  593 


(67) 


TABLE  OF  STATUTES  CITED. 


[*lxviii.] 


(The  paging  refers  to  the  [*]   pages.) 


***   The  Statutes  marked  with   an  asterisk  will  be  found  printed  in  full  in 
Appendix  D.,  post,  pp.  707 — 709. 


PAGE 

3  Ed.    I.    Stat.   Westminster   1, 

c.  34  .     134,  136,  425,  484,  488, 

492,  708 

13  Ed.  I.  Stat.  4         ...     708 

25  Ed.  III.  c.  2  .         .      477,  478 

2  Rich,  II..  St.  1,  c.  5     .     75,  135,  136 

425,  484,  488,  492,  708 

12  Rich.  II.  c.  11  136,  425,  484, 

488,  492,  708 

1  Ed.  VI.  c.  1,  s.  1      .  .  .  465 

2&3Ed.  VI.  c.  1,  s.  2  .  .  465 

3  .  .  465 

1  &2Ph.  c%M.  c.  13  .  .  511 

1  Eliz   c.  1,  s.  6        .  .  .  447 

2,  4.  2        .  .  .  465 

3  465 

5  Eliz.  c.  4  .  302 

13  Eliz.  c.  12,  s.  2  .  .  .  465 
18  Eliz.  c.  3  .  .  .  59 
1  Jac.  I.  e.  11  .         .  .  .  60 

3  Jac.  I.  c.  21  .  .  .  .  460 
21  Jac.  I.  c.  16           .  366,  521,  653 

s.  3  .  .  .     520 

19.  s.  7  .  .  .     521 

*13  Car.  II.  Stat,  1,  c.  1      .  .     486 

s.  3 .  488,  708 

c.  5        .  .  .381 

13  &  14  Car.  II.  c.  33  .  .       11 

14  Car.  II.  c.  4,  s.  1  .  .  465 
29  Car.  II.  c.  9,  s.  1  .  .     447 

2  447 

1  -lac  II.  c.  17           .           '.  '.       11 

1  W.  &  M.  Sess.  2,  c.  2       .  185,  381 

c.  18,  s.  4           .  .     448 

17           .  .     448 

3  W.  &M.  c.  9,  s.  4.          .  .       61 

10                    .  .       56 

*4  W.  &  M.  c.  18,  s.  1         .  610,  613, 

709 

5  &  6  W.  &  M.  c.  11,  s.  3  .        598 

8  &  9  Wm.  III.  c.  11,  s.  6  .        407 


9  &  10  Wm.  III.  c.  35  [c.   32  in 
the  Statutes  at  laro-e]      .     454, 

460,  461,  466, 

4  &  5  Anne,    c.    3  (al.    c.    16), 
s.  19 

5  Anne,  c.  8,  s.  23 

6  Anne,  c.  7  (al.  41),  s.  1    . 

2    . 

10  Anne,  c.  19,  ss.  111—114 

s.  113        .        12 
4  Geo.  I.  c.  11     . 

6  Geo.  I.  c.  19,  s.  2 

7  Geo.  II.  c.  8,  s.  1 
9  Geo.  II.  c.  5,  s.  3 
12  Geo.  III.  c.  73 
23  Geo.  III.  c.  18 
*32  Geo.  III.  c.  60  (Fox's  Libel 

Act)   .   13,  94,  361,  362,  363, 


s.  1 

3 

4 

36  Geo.  III.  c.  7 

38  Geo.  III.  c.  71,  s.  17 

78 
*39  Geo.  III.  c.  79   . 
s.  29 
48  Geo.  III.  c.  58,  s.  1. 
*51  Geo.  III.  c.  65,  s.  3 

52  Geo.  III.  c.  155,  s.  5 

53  Geo.  III.  c.  127,  s.  3 

160   .  448 


PAGE 

456, 


55  Geo.  III.  c.  42 
57  Geo.  III.  c.  6 
19 


60  Geo.  III. 

c.  4,  s.  1 


s.  23 
&  1  Geo. 


478 


380 

12 


448 

460, 
462 


IV. 


521 

136 

478 

488 

374 

374 

61 

509 

83 

60 

344 

344 

592, 
710 
604 
604 
605 
721 
154 
374 
711 
517 
613 
712 

,  449 
448 

461, 
466 
354 
478 
380 
381 

598 
598 


(68) 


TABLE  OF  STATUTES  CITED. 


lxix 


(The  paging  refers  to  the  [*]  pages.) 


[*lxix.] 

PAGE 

PAGE 

60  Geo.  III.  &  1  Geo.  IV. 

9  10  Vict.  c.  95, 

.       587 

*c.  8,  s.  1  .     440,  476,  479, 

609.  712 

98       . 

.       372 

2 

479,  609 

113     . 

.       509 

3 

.       479 

cxxvi. 

.       588 

4 

.       479 

11  &  12  Vict. 

c.  12,  s.  1  . 

.       478 

3  Geo.  IV.  c.  40,  s.  3 

.       474 

*s.  3  . 

477,  478, 

*5  Geo.  IV.  c.  83,  s.  4  .  474, 

713,  714 

721 

6  Geo.  IV.  c.  50,  s.  30       . 

.       598 

42,  s.  1  . 

•    589,  590 

119      . 

13 

8  . 

.       589 

7  Geo.  IV.  c   64,  s.  "20 

.       601 

9  . 

.       590 

7  &  8  Geo.  IV.  c.  28,  s.  2. 

.       596 

43  .        386,  392,  393 

9  Geo.  IV.  c.  22,  s.  7 

.       253 

78,  s.  2  . 

.       605 

32,  s.  3 

.       172 

5  . 

.       606 

11  Geo.  IV.  &  1  Wm.  IV. 

12  &  13  Vict. 

c.  101,  s.  2  . 

.       510 

c.  73,  s.  1    . 

479 

14  &  15  Vict. 

c.  93  . 

.       393 

2  &  3  Wm.  IV.  c.  93 

.       512 

s.  9    . 

.       510 

s.   2 

.       512 

100,  s.  1  . 

593,  596, 

3  &  4  Wm.  IV.  c.  42,  s.   7 

.       521 

601 

40 

.       503 

2  . 

.       596 

6&7Wm.  IV.  c.  76  .  12,  374 

377,  714 

3  . 

.       596 

s.  6      . 

.       561 

24  . 

601 

8      . 

.       561 

25  . 

596,  601, 

13      . 

.       561 

605 

*19      . 

551,  552, 

29  . 

.       471 

553,   713 

15  &  16  Vict 

c.  76  (Common 

7  Wm.  IV.  &  1  Vict.  c.  23 

.      479 

Law  Procedure  Act, 

1852) 

*1  &  2  Vict.  c.  38,  s.  2      . 

474,  714 

s.  40 

.       397 

105,  s.  1    . 

.       458 

*61        100,  114,  120, 

*2  &  3  Vict.  c.  12,  ss.  2,  3,  4 

.        12, 

129,  t 

.31,  593,  721 

389,  714 

70. 

.       720 

71,  s.  49     . 

.       473 

(Schedule  B.,  form  33) 

.       103 

*3  &  4  Vict.  c.  9       .       185, 

525,  715 

16  &  17  Vict. 

c.  30,  s.  4  . 

.       598 

24:  s.  2      . 

365,  366 

5  . 

.       598 

86,  s.  3      . 

.       226 

6  . 

.       599 

105,  s.  46     .' 

.       720 

113,  s.  77 

.       720 

5  &  6  Vict.  c.  38       . 

.       471 

17  &  18  Vict. 

c.  125  (C.  L 

P. 

s.  1 

.       593 

Act,  1854) 

.       552 

97,  s.  4 

.       518 

s.'  24   .' 

.       573 

122,  s.  42      . 

.       252 

25  . 

.       573 

6  &  7  Vict.  c.  68,   s.  1 

.       466 

27  . 

560,  599 

14      . 

11 

79  . 

360,  361, 

*Lord  Campbell's  Act,  c.  96 

.      383, 

363 

413,  597, 

689,  716 

81  . 

.       360 

s.  1          .        322,  542,  586, 

658,  672 

82  . 

360,  361, 

2       322,  323,  541,  542, 

544,    577, 

363 

586, 

658,  672 

103  . 

.       599 

3 

.       426 

18  Vict.  c.  27 

13 

4         .        426,  591,  595, 

601,  683 

*18  &  19  Vict 

.  c.  41 

.       708 

5         .         385,  426,  438, 

595,  683 

s.  1  . 

17,  61,  88, 

6           17,  178,  437,  596, 

597,  608 

450,  722 

7    159,  413,  414,  415,  433 

,  436,  602 

55,  s.  35 

.       491 

8         .         .         .         . 

609,  614 

81 

.       449 

7&8Vict.  c.  45 

.      462 

19  &  20  Vict. 

c.  16,  s.  1  . 

.       598 

84       . 

.       144 

47 

.       417 

*8  &  9  Vict.  c.  75     . 

.       719 

97,  s.  12. 

.       521 

s  2  .     323 

542,  719 

108,  s.  23  . 

519,  584 

*9  &  10  Vict.  c.  33,  s.  1   . 

.       720 

20  &  21  Vict. 

c.  43,   .       . 

.      474 

59    .       . 

.      463 

*c.  83    . 

12,  472,  722 

95,  s.  58 . 

366,  519 

85,  s.  21 . 

.       404 

584 

25. 

.      404 

73. 

.       587 
( 

39) 

26. 

.       404 

lxx 


TABLE  OF  STATUTES  CITED. 


(The  paging  refers  to  the  [*]  pages  ) 


[*Ixx.] 


PAGE 

PAGE 

21  &  22  Vict.  c.  90,  s.  27  . 

5 

.     403,  540 

22  &  23  Vict.  c.  17    .        .         386,  589 

38  &: 

22  A:  23  Vict.  c.  17,  s.  2     .       385,  592 

uid  Drugs  Act, 

6     .         .592 

1875)          .       .        54 

23  &  24  Vict.  c.  28     .         .         .        83 

c.  1 

J6     .          .       .      724 

32     .         .         .      724 

77     (Judicature 

127,  s.  22          .      558 

Act,  1875) 

24  &  25  Vict.  c.  94,  s.  8     .         .      595 

s.  22    .     578,  580 

96,  s.  46   .         .      427 

33    .       .      366 

47    .         .      427 

c. 

86,  s.  17    .       .      202 

c.  134  (Bankruptcy- 

40 

&  41 

Vict.  ( 

3.  57  (Jud.  Act 

Act,  1861)  ss.  101,  102,  253 

(Ireland),  1877),  s.  53        .      368 

26  &  27  Vict.  c.  125           .         .      708 

42  &- 

27  &  28  Vict,  c.  47,  s.  2 

.      427 

s.  27      .     386,  592 

28  Vict.  c.  36,  s.  16   . 

.      510 

34      .       .      389 

28  &  29  Vict.  c.  18,  s.  4 

.      601 

50      .       .      393 

5 

.      601 

59,  s.  3      .       .      525 

6 

.      573 

Schedule, 

Part  II.     .     719,  720 

8 

.      599 

*4S 

&    U 

-    Vict 

c.    41   (Burial 

30  &  31  Vict.  c.  35,  s.  1 

.      595 

Laws 

Amendment      Act, 

2 

385,  592 

1880), 

s.  7  . 

.     466,  467,  724 

3 

.      590 

*44& 

60  (Newspaper 

142  . 

368,  371 

Libel 

and  Registration  Act, 

s.  5 

.      365 

1881) 

.      12,  374—393,  560,  725 

10 

372,  526, 

s. 

1 

.     376,  388 

527,  585, 

2 

1 75,  266,  377,  652 

587,  670, 

3 

383,  386,  589,  610 

671,  672 

4 

384,  387,  439,  590 

29     .         .      588 

5 

.     386,  592 

31  &  32  Vict.  c.  54,  s.  5     .         .      408 

6 

385,  386,  589,  595 

32  &  33  Vict.  c.  24     .         .         .12 

7 

.     386,  592 

s.  1     .         .      380 

8 

.     388 

Sched.  1  .  551,  561, 

9 

.     388,  393 

711,  715 

10 

.     387,  389 

2  .  551,  711, 

11 

389,  392,  393,  561 

714,  715,  720 

12 

.     389,  390 

42,  s.  21        .      724 

13 

.     390 

68,  s.  4   .       .      458 

14 

.     391 

71,  s.  15.       .      406 

15 

390,391,517,553,561 

33  &  34  Vict.   c.  49,  s.  1    .       .      458 

16 

.     392 

79,  s.  20  .             474 

17 

.     392 

c.  93  (Married  Women's  Pro- 

18 

.     387,  393 

perty  Act,  1870)            .      88,  335, 

19 

.     393 

399,  401,  425 

20 

.     393 

s.  11       .      398 

Schedule  A. 

.     388,  393 

c.  99  .         12,  374,  377, 

B 

.     389,  393,  501 

551,  714 

45 

&  46 

Vict, 

c.    75    (Married 

34  &  35  Vict.  c.  112  .         .         .      573 

s.  18             .       574 

Women's 

Property      Act, 

36  &  37  Vict.  c.  66  (Judicature 

1882), 

.      £ 

8,  335,  396,  397,  400, 

Act,  1873)            .          .       .      424 

401 

s.  24,  subs.  7        .       .      55:5 

s. 

1    . : 

50,  83,  372,  541,  580 

25,  subs.  8         .     359,  360 

1,  su 

bs.  (2)        .        .     395 

39  .          .           .     502,  503 

12     . 

83,  397,  398 

67  .          .       366,  527,  588 

13    . 

372,  401,  580 

36&37  Vict.  c.  91,  s.  1       .       .      380 

14     . 

.     402 

37  &  38  Vict.  c.   50  (Married 

15     . 

.     402 

Women's     Property     Act 

19     . 

.     400 

Amendment  Act,  1*874).  88,  335, 

46  & 

19    .            .     362,  721 

401 

s.     4     .     719,  720 

s.  2      . 

.     403,  540 

1 

57,  s.  32     .     147.  350 

(70) 


TABLE  OF  RULES  AND  ORDERS  CITED. 


(The  paging  refers  to  the  [*]  pages.) 


[*lxxi] 


RULES    OF    THE    SUPREME    COURT,    1883. 


Order 


PAGE 

PAOE 

II. 

rule  4 

.     519 

Order            XX. 

rule  1 

.     528 

XI. 

409,  519 

,,     4 

.     587 

„    if   • 

.     519 

XXI. 

,,     4 

.     536 

„     3  . 

.     401 

,,  20 

.     515 

„     6 

.     409 

XXII. 

„     1 

323,  324, 

XIII. 

,,     1  • 

.     405 

370,  541,  542 

„     2 

.     526 

,,     4 

.     525 

XVI. 

„     1  418 

,  419,  516 

\\          XXIII. 

„     6 

544 

„     2  . 

.     516 

XXV. 

,,     1 

536 

,,     3 

.     421 

„     2 

536 

,,     4  . 

418,  420, 
516,  553 

„     3 
,,     4 

536 
533 

„     5 

420,  516 

XXVII. 

„     4 

526 

,,     7  418 

420,  516 

„      XXVIII. 

„     1 

'  524,' 564,  572 

„  11  • 

.     516 

„     6 

.     564,  572 

„  12      . 

.     572 

„  12 

.     .     572 

„  18  . 

.     405 

XXXI. 

,,     1 

.      545,  546 

,,  19       . 

.     405 

,     6  . 

.      .     550 

„  21  . 

.     405 

,     7 

549 

XVII. 

,,     1       • 

398,  407 

,  26  . 

545 

,,     4  . 

.     398 

„     XXXVI. 

,     2 

557 

XVIII. 

,,     1 

523,  525 

,     7  . 

557 

.,     4  . 

397,  523 

,  12 

557 

,,     6 

418,  523 

,  14  . 

526 

,,     7  . 

523,  525 

,  15 

526 

„     8 

523,  525 

,  19  . 

526 

„     9  . 

523,  525 

,  31 

526 

XIX. 

,,     4       . 

120,  531, 
542 

,  35  . 
,  36 

526 
526 

„     6  . 

.     538 

,  37  . 

31*9,  320,  321, 

„     7 

.     533 

526,  542,  543, 

„     8  . 

.     533 

548,  556,  574, 

„  11       . 

.     536 

577,  655,  656 

„  13  . 

.     535 

,  39  . 

.       .     571 

„  15       . 

.     540 

,  51 

503 

„  17  . 

.     536 

„     XXXVII.  , 

,     5  . 

556 

„  18       . 

537,  544 

„      XXXIX. 

580 

,,  21  . 

.     523 

,     1  • 

581 

,,  25       . 

.     530 

,     4 

580 

„  27  . 

.     533 

,     6  . 

. 

.    581 

(71) 


lxxii 


TABLE  OF  RULES  AND  ORDERS  CITED. 


(The  paging  refers  to  the  [*]  pages.) 


t*  lxxii] 

* 

PAGE 

PAGE 

Order 

XL. 

rule  4 

580 

Order 

LIX. 

rule  11   . 

.      .     587 

,,     5  . 

581 

,,  12 

.     587 

,.  10 

580 

,,  13  . 

.      .     587 

XLII. 

„  23  . 

408 

„  14 

.     587 

XLIV. 

503 

,,   15  . 

.      .     587 

'  ,,     2  .         . 

500 

,.  16 

.     587 

XLIX. 

„     8 

525 

„  17  . 

.      .     587 

" 

LV. 

„  27  . 

405 

LXV. 

,,     1 

.      365,  368 

» 

LVLTI 

„     4 
„     5  . 

581 

580 

526,  527, 
579,  588 

LIX. 

,,     9 

587 

2 

.      .     369 

" 

,,  10  . 

587 

,,     6a. 

.  408,  525 

(m 


PART  I. 

THE  LAW  OF  LIBEL  AND  SLANDER. 


CHAPTER  I. 


INTRODUCTORY 


No  man  may  disparage  or  destroy  the  reputation  of  another. 
Every  man  has  a  right  to  have  his  good  name  maintained  unim- 
paired. This  right  is  a  jus  in  rem,  a  right  absolute  and  good 
against  all  the  world. 

Words  which  produce  any  perceptible  injury  to  the  reputation 
of  another  are  called  Defamatory. 

Defamatory  words,  if  false,  are  actionable. 

False  defamatory  Avords,  if  written  and  published,  constitute  a 
libel ;  if  spoken,  a  slander. 

Words  which  on  the  face  of  them  must  injure  the  reputation  of 
the  person  to  whom  they  refer,  are  clearly  defamatory,  and,  if 
false,  are  actionable  Avithout  proof  that  any  particular  damage  has 
followed  from  their  use. 

Words,  on  the  other  hand,  which  merely  might  tend  to  injure  the 
reputation  of  another  are  primd  facie  not  defamatory,  and  even 
though  false  are  not  actionable,  unless  as  a  matter  of  fact  some 
appreciable  injury  has  followed  from  their  use. 

Illustrations. 

To  say  "A.  is  a  coward,"  or  "a  liar,"  or  "  a  rascal,"  is  not  defamatory,, 
unless  it  can  be  proved  that  some  one  seriously  believed  and  acted  on  the  asser- 
tion, to  the  prejudice  of  A.  Such  words,  though  false,  are  not  actionable  with- 
out some  [*  2]  evidence  to  show  that  A.'s  reputation  has  as  a  matter  of  fact  been 
actually  impaired  thereby.     Be  minimis  non  curat  lex. 

To  say  of  B.  : — "  He  forged  his  master's  signature  to  a  cheque  for  1001."  is 
clearly  defamatory,  and,  if  false,  actionable.  It  must  injure  B.'s  reputation  to 
bring  such  a  specific  charge  against  him. 

In  any  given  case,  the  fact  that  the  words  employed  by  the 
defendant  have  perceptibly  injured  the  plaintiff's  reputation  may 
be  either 

(i)  presumed  from  the  nature  of  the  words  themselves  ;  or, 
(ii)  proved  by  evidence  of  their  consequences. 
1  Lib.  &  Slan.  (73) 


/ 


2  INTRODUCTION. 

(i)  It  will  be  presumed  from  the  nature  of  the  words  themselves, 

[a)  If  the  words,  being  written  and  published  or  printed  and 
published,  disparage  the  plaintiff  or  tend  to  bring  him 
into  ridicule  and  contempt. 

(b)  If  the  words,  being  spoken, 

(1 )  charge  the  plaintiff  with  the  commission  of  a  crime  ; 

(2)  impute  to  the  plaintiff  a  contagious  disorder  tending 

to  exclude  him  from  society  ; 

(3)  are  spoken  of  the  plaintiff  in  the  way  of  his  profes- 
sion or  trade,  or  disparage  him  in  an  office  of  pub- 
lic trust. 

In  all  these  cases  the  words  are  said  to  be  actionable  per  se, 
because  on  the  face  of  them  they  clearly  must  have  injured  the 
plaintiff's  reputation. 

(ii)  But  in  all  other  cases  of  spoken  words,  the  fact  that  the 
plaintiff's  reputation  has  been  injured  thereby,  must  lie  proved  at 
the  trial  by  evidence  of  the  consequences  that  directly  resulted 
from  their  utterance.  Such  evidence  is  called  "  evidence  of  special 
damage,"  as  distinguished  from  that  general  damage  which  the  law 
assumes,  without  express  proof,  to  follow  from  the  employment  of 
words  actionable  per  se. 

Illustrations. 

To  say  of  A.  "  He  is  a  forger  and  a  felon,"  or  "  He  hath  the  French  pox,"  to 
call  a  physician  a  quack,  or  a  tradesman  a  bankrupt,  to  say  of  a  magistrate  that 
[*  li]  he  is  a  corrupt  judge,  is  in  each  case  actionable  without  proof  of  special 
damage.     A  fortiori,  if  the  words  be  written,  or  printed,  and  published. 

But  to  call  a  man  a  cheat,  a  rogue,  and  a  swindler,  or  to  call  a  woman  an 
adulteress,  is  not  actionable,  without  proof  of  special  damage,  if  the  words  be 
spoken  only  ;  but  is  actionable  per  se,  if  the  accusation  be  reduced  into  writing 
and  published  to  the  world. . 

Thus  the  presumption  that  words  are  defamatory  arises  much 
more  easily  in  cases  of  libel  than  in  cases  of  slander.  Many  words 
Avhich  if  printed  and  published  would  be  presumed  to  have  injured 
the  plaintiff's  reputation,  will  not  be  actionable  per  se,  if  merely 
spoken.     Two  reasons  are  usually  given  for  this  distinction  : — 

1.  A  slander  may  be  uttered  in  the  heat  of  a  moment,  and  under 
a  sudden  provocation  ;  the  reduction  of  the  charge  into  writing 
and  the  subsequent  publication  of  a  libel  show  greater  deliberation 
and  malice. 

2.  Vox  emisxa  volat ;  litera  scripta  manet.  The  written  or  printed 
matter  is  permanent,  and  no  one  can  tell  into  whose  hands  it  may 
come.  Every  one  now  can  read.  The  circulation  of  a  newspaper 
is  enormous," especially  if  it  be  known  to  contain  libellous  matter  ; 
and  many  people  implicitly  believe  every  word  they  see  in  print. 
And  even  a  private  letter  may  turn  up  in  after  years,  and  reach 
persons  for  whom  it  was  never  intended,  and  so  do  incalculable 
mischief.  Whereas  a  slander  only  reaches  the  immediate  by- 
standers, who  can  observe  the  manner  and  note  the  tone  of  the 
speaker, — who  have  heard  the  antecedent  conversation  which  may 
greatly  qualify  his  assertion, — who  probably  are  acquainted  with 
the  speaker,  and  know  what  value  is  to  be  attached  to  any  charge 

(74) 


INTRODUCTION.  3 

made  by  him  ;  the  mischief  is  thus  much  less  in  extent,  and  the 
publicity  less  durable. 

This  sharp  distinction  between  slander  and  libel  has  been 
recognized  in  English  law  by  Hale,  ('.!>.,  in  King  v.  Lake,2 
Vent.  28  ;  Ilardres,  470  ;  by  Lord  llardwicke,  C.J.,  in  Bradley  v. 
Methwyn,  Selw.  N.  P.  982,  and  by  Lord  Mansfield,  ( '.J.,  in  Thorley 
v.  Lord  Kerry,  4  Taunt.  355  ;  3  Camp.  214,  n.,  and  in  numerous 
other  cases,  and  is  far  too  well  established  to  be  ever  shaken. 

The  intention  or  motive  with  which  the  words  were  employed  is, 
as  a  rule,  immaterial.  If  the  defendant  has  in  fact  injured  the 
plaintiff's  reputation,  he  is  liable,  although  he  did  not  intend  so  to 
do,  and  had  no  such  purpose  in  his  mind  when  he  spoke  or  wrote 
the  words.  Every  man  must  be  presumed  to  intend  and  to  know  the 
[*1]  natural  and  ordinary  consequences  of  his  acts  :  and  this  pre- 
sumption (if  indeed  it  is  ever  rebuttable)  is  not  rebutted  merely 
by  proof  that  at  the  time  he  uttered  or  published  the  words  the 
defendant  did  not  attend  to  or  think  of  their  natural  or  probable 
consequences,  or  hoped  or  expected  that  these  consequences  would 
not  follow.     Such  proof  can  only  go  to  mitigate  the  damages. 

Sometimes,  however,  it  is  a  man's  duty  to  speak  fully  and  freely, 
and  without  thought  or  fear  of  the  consequences  ;  and  then  the 
above  rule  does  not  apply.  The  words  are  privileged  by  reason  of 
the  occasion  on  which  they  were  employed  ;  and  no  action  lies 
therefor,  unless  it  can  be  proved  that  the  defendant  was  actuated 
by  some  special  spite  or  some  wicked  and  malicious  motive.  (See 
post,  Chapters  VIII.  and  IX.)  But  in  all  other  cases  (although  the 
pleader  invariably  alleges  that  the  words  were  spoken  or  published 
falsely  and  maliciously)  malice  in  fact  need  never  be  proved  at  the 
trial  ;  the  words  are  actionable,  if  false  and  defamatory,  although 
spoken  or  published  accidentally  or  inadvertently,  or  with  an  honest 
belief  in  their  truth. 

"  That  unfortunate  word  '  malice '  has  got  into  cases  of  actions 
for  libel.  We  all  know  that  a  man  may  be  the  publisher  of  a  libel 
without  a  particle  of  malice  or  improper  motive.  Therefore  the 
case  is  not  the  same  as  where  actual  and  real  malice  is  necessary. 
Take  the  case  where  a  person  may  make  an  untrue  statement  of  a 
man  in  writing,  not  privileged  on  account  of  the  occasion  of  its 
publication  ;  he  would  be  liable  although  he  had  not  a  particle  of 
malice  against  the  man."  Per  Lord  Bramwell  in  Abrath  v.  North 
Eastern  Rail.  Co.,  11  App.  Cas.  at  pp.  253,  254  ;  55  L.  J.  Q.  B.  at 
p.  460  ;  55  L.  T.  at  p.  65. 

Illustrations. 

The  Protestant  Electoral  Union  published  a  book  called  "  The  Confessional 
Unmasked."  Their  motive  in  so  doing  was  "not  only  innocent  but  praise- 
worthy," viz.: — to  promote  the  spread  of  the  Protestant  religion,  by  exposing 
the  abuses  of  the  Roman  Catholic  system  ;  but  certain  passages  in  the  book  Were 
necessarily  obscene.  Held  that  its  publication  was  a  misdemeanor.  All  copies 
which  the  defendant  had  for  sale  were  ordered  to  be  destroyed  as  obscene  books. 
Neither  the  law  nor  the  religion  of  England  permits  anyone  to  ' '  do  evil  that 
good  may  come." 

R.  v.  HicJdin,  L.  R.  3  Q.  B.  360  ;  37  L.  J.  M.  C.  89  ;  16  W.  R.  801  ; 
18  L.  T.  395  ;  11  Cox,  C.  C.  19. 
(75) 


4  INTRODUCTION. 

P  51  Steele  v.  Brannan,  L.  R.  7  C.  P.  261  ;  41  L.  J.  M.  C.  85  ;  20  W.  R. 

607  ;  26  L.   T.  509. 
And  see  B.  v.  Bra&laugh  and  Besant,  2  Q.  B.  D.  569 ;  46  L.  J.  M. 
C.  286. 
If  a  man  deliver  by  mistake  a  paper  out  of  his  study  where  he  had  just  writ- 
ten it  ;  he  will  it  seems  he  liahle  to  an   action,  if  the  paper  prove  libellous, 
although  he  never  intended  to  publish  that  paper,  but  another  innocent  one. 

Note  to  Mayne  v.  Fletcher,  4  M.  &  Ry.  312  ;  9  B.  &  C.  382  ;  cf.  B. 
v.  Payne,  5  Mod.  167. 
The  plaintiff  told  a  laughable  story  against  himself  in  company  :  the  defend- 
ant published  it  in  the  newspaper  to  amuse  his  readers,  assuming  that  the  plain- 
tiff would  not  object.     The  plaintiff  recovered  damages,  101. 
Cook  v.   Ward,  6  Bing.  409  ;  4  M.  &  P.  99. 
For  though  he  told  it  of  himself  to  his  friends,  he  by  no  means  courted  pub- 
lic ridicule.     And  that  the  publication  was  "  only  in  jest  "  has  long  been  held 
no  defence. 

Where  a  clergyman  in  a  sermon  recited  a  story  out  of  Foxe's  Martyrology, 
that  one  Greenwood  being  a  perjured  person  and  a  great  persecutor,  had  great 
plagues  inflicted  upon  him,  and  was  killed  by  the  hand  of  God  ;  whereas  in 
truth,  he  never  was  so  plagued,  and  was  himself  actually  present  at  that  dis- 
course,— the  words  being  delivered  only  as  a  matter  of  history,  and  not  with 
any  intention  to  slander,  it  was  adjudged  for  the  defendant. 

Greenwood  v.  Prick,  Cro.  Jac.  91,  cited  in  1  Camp.  ?,70  ;  and  also  in 
B.  v.  Williams,  13  How.  St.  Tr.  1387. 
But  Lord  Denman  and  the  Court  of  Q.  B.  said  most  positively  in  Hearne  v. 
Stowett,  12  A.  &  E.  726,  that  this  case  is  not  law.     Mr.  Greenwood  would  there- 
fore in  the  present  day  have  recovered  at  least  nominal  damages. 

The  proprietor  of  the  Times  retired  to  live  in  the  country,  leaving  the  entire 
management  of  the  paper  to  his  son,  with  whom  he  never  interfered  ;  yet  he 
was  held  criminally  liable  for  a  libel  which  appeared  in  the  paper  in  his  absence 
and  without  his  knowledge.     And  though  now  since  Lord  Campbell's  Act  he 
would  probably  be  acquitted  in  any  criminal  proceeding,  he  would  certainly  be 
held  liable  for  damages  in  a  civil  action. 
B,  v.  Walter,  3  Esp.  21. 
B.  v.  Gutch  and  others,  Moo.  &  Mai.  433. 
B.  v.  Dodd,  2  Sess.  Cas.  33. 
A  corporation  is  liable  for  a  libel  published  by  its  authority  ;  although  the 
corporation,  as  distinct  from  its  members,  cannot  be  guilty  of  malice  in  the 
ordinary  sense  of  the  word. 

Per  Lord  Bramwell  in  Abrath  v.  Nortli  Eastern  Bail.   Co.,  11  App. 
Cas.  at  pp.  253,  254  ;  55  L.  J.  Q.  B.  at  p.  460;  55  L.  T.  at  pp.  65,  66. 
Even  a  lunatic  is  liable  to  an  action  for  libel  or  slander  unless  his  insanity  is 
well  known  to  all  who  hear  or  read  his  words,  in  which  case  no  damage  would 
be  incurred,  as  the  words  would  produce  no  effect. 
Dickinson  v.  Barber,  9  Mass.  225. 
Yeates  et  ux.  v.  Beed  etux.,  4  Blackf.  463. 
A  barrister,  editing  a  book  on  the  Law  of  Attorneys,  referred  to  a  case,  Be 
Blake,  as  reported  in  30  Law  Journal,  Q.  B.  32,  and  stated  that  Mr.  Blake  was 
struck  off  the  rolls  for  misconduct.     He  was  in  fact  only  suspended  for  two 
years,  as  appeared  from  the  Law  Journal  report.     The  publishers  were   held 
1*6]  liable  for  this  carelessness,  although  of  course  neither  they  nor  the  writer 
bore  Mr.  Blake  any  malice.     Damages  100£. 

Blake  v.  Stevens  and  others,  4  F.  &  F.  232  ;  11  L  T.  543. 
The  printers  of  a  newspaper  by  a  mistake  in  setting  up  in  type  the  announce- 
ments from  the  London  Gazette,  placed  the  name  of  the  plaintiff's  firm  under 
the  heading  "  First  Meetings  under  the  Bankruptcy  Act  "  instead  of  under  "  Dis- 
solutions of  Partnership."  An  ample  apology  was  inserted  in  the  next  issue: 
no  damage  was  proved  to  have  followed  to  the  plaintiff  ;  and  there  was  no  sug- 
gestion of  any  malice.  In  an  action  for  libel  against  the  proprietor  of  the 
paper,  the  jury  awarded  the  plaintiff  50?.  damages.  Held  that  the  publication 
was  libellous,  and  that  the  damages  awarded  were  not  excessive. 

Shepherd  v.  Whitaker,  L.  R.  10  C.  P.  502 ;  32  L.  T.  402. 

(76) 


INTRODUCTION".  5 

False  defamatory  words  then,  if  spoken,  constitute  a  Blander  : 
if  written  and  published,  a  libel.  The  word  "  written "  includes 
any  printed,  painted,  or  any  other  permanent   representation   not 

transient  in  its  nature  as  are  spoken  words. 

The  writing  may  be  on  paper,  parchment,  copper,  wood,  or  stone, 
or  on  any  kind  of  substance  in  fact;  and  may  be  made  with  any 
instrument,  pen  and  ink,  blacklead  pencils  (Geari/  v.  Physic,  5  15. 
&  C.  238),  or  in  chalk,  &c.  A  picture  or  effigy  may  also  be  a  libel, 
or  any  other  mark  or  sign  exposed  to  view  and  conveying  a  defam- 
atory meaning.  (5  Rep.  125.) 

Illustrations. 

A  caricature  or  scandalous  painting  is  a  libel. 

Anon.,  11  Mod.  99. 

Austin  v.  Culpepper,  2  Show.  313  ;  Skin.  123. 

Du  Bost  v.  Beresford,  2  Camp.  511. 
A  chalk  mark  on  a  wall  may  be  a  libel,  and  as  the  wall  cannot  conveniently 
be  brought  into  Court,  secondary  evidence  may  be  given  of  the  inscription. 

Mortimer  v.  M'Callan,  6  M.  &  W.  58. 

Tarpley  v.  Blabij,  7  C.  P.  395. 

See  Spall  v.  Massey  and  others,  2  Stark.  559. 
Burning  a  man  in  effigy  may  be  a  libel  on  him  ;  but  those  who  merely  stand 
by  looking  on  are  not  liable. 

Eyre  v.  Oarlick,  42  J.  P.  68. 
A  statue  may  be  a  libel ;  so  is  fixing  up  a  gallows  against  a  man's  door. 

Hawkins'  Pleas  of  the  Crown,  8th  edition,  542  ;  5  Rep.  125,  b. 
Hieroglyphics,  a  rebus,  an  anagram,  or  an  allegory  may  be  a  libel. 
Ironical  praise  may  be  a  libel. 

There  is  a  further  important  distinction  between  slander  and 
libel.  Every  libel  is  a  crime  ;  a  slander  on  a  private  [*7]  individ- 
ual is  not.  It  is  only  when  the  words  uttered  are  blasphemous, 
seditious  or  obscene  that  the  State  is  concerned  to  interfere  and 
punish  the  speaker. 

It  is,  I  think,  clearly  necessary  that  there  should  be  a  criminal  as 
well  as  a  civil  remedy 'for  libel,  for  the  following  reasons  : — 

1.  The  evil  done  by  libels  is  so  extensive,  the  example  set  so  per- 

nicious, that  it  is  desirable  that  they  should  be  repressed  for 
the  public  good.  Slanders  do  less  mischief  as  a  rule,  are  not 
permanent,  and  are  more  easily  forgotten;  their  evil  influence 
is  not  so  widely  diffused. 

2.  Most  libellers  are  penniless,  and  a  civil  action  has' no  terrors  for 

them.  The  plaintiff  will  never  get  his  damages.  In  fact  the 
proprietor  of  many  a  low  newspaper  rather  rejoices  at  the 
prospect  of  a  civil  action  for  libel  being  brought  against  him. 
He  regards  it  as  a  gratuitous  advertisement  for  his  paper,  cal- 
culated to  increase  its  circulation  in  these  degenerate  days. 

3.  Another  reason  often  assigned  for  the  interference  of  the  State 

is,  that  libels  conduce  to  a  breach   of  the  peace  ;  but  that 

reason  would,  I  think,  appby  with  equal,  if  not  greater  force 

to  slanders. 

Lush,  J.,  says,  in  R.  v.  Holbrooh,  4  Q.  B.  D.  at  p.  40,  "  Libel  on 

an  individual  is,  and  has  always  been,  regarded  as  both  a   civil 

injury  and  a  criminal  offence.     The  person  libelled  may  pursue  his 

(77) 


INTRODUCTION. 


remedy  for  damages  or  prefer  an  indictment,  or  by  leave  of  the  Court 
a  criminal  information,  or  he  may  both  sue  for  damages  and  indict. 
It  is  ranked  amongst  criminal  offences  because  of  its  supposed  ten- 
dency to  arouse  angry  passion,  provoke  revenge,  and  thus  endanger 
the  public  peace,  but  the  libeller  is  not  the  less  bound  to  make  com- 
pensation for  the  pecuniary  or  other  loss  or  injury  which  the  libel 
might  have  occasioned  to  the  person  libelled." 

The  fact  that  libel  is  a  crime  as  well  as  a  tort,  produces  other  con- 
sequences in  law  which  it  may  be  well  to  briefly  notice  here,  though 
they  are  not  strictly  within  the  scope  of  the  present  treatise. _ 

No  action  can  be  maintained  for  the  price  of  libellous  pictures 
{Fores  v.  Johnes,  4  Esp.  97),  or  for  their  value,  if  destroyed  by  the 
person  ridiculed.  (Du  Bost  v.  Beresford,  2  Camp.  511.)  A  printer 
cannot  recover  for  printing  a  libel.  (Poplett  v.  Stockdale,  Ry.  &  M. 
337 \Bvll  v.  Chapman,  8  Ex.  104.)  If  a  printer  undertakes  to  print  a 
book  for  a  certain  price,  and  discovers  as  the  work  proceeds  that  the 
matter  is  defamatory,  he  may  decline  to  continue  the  work,  and  can 
recover  for  such  part  of  the  work  printed  as  is  not  defamatory  in  an 
[  *8  ]  action  for  work  and  labour  done  and  materials  provided,  the 
special  contract  notwithstanding.  (  Clay  v.  Yates,  1 II.  &  N.  73;  25  L. 
J.  Ex.  237;  4  W.  R.557;  27  L.  T.  (Old  S.)  126.)  Nor  can  an  action 
be  maintained  for  breach  of  a  contract  to  furnish  manuscript  of 
defamatory  matter  (  Gale  v.  Leckie,  2  Stark.  107),  or  of  a  contract 
to  let  rooms  to  be  used  for  the  delivery  of  blasphemous  lectures 
{Cowan  v.  Milbourn,  L.  R.  2  Ex.  230;  36  L.  J.  Ex.  124  ;  15  W.  R. 
750;  16  L.  T.  290),  or  for  pirating  a  libellous  book  {iStockdale  v. 
Onwhyn,  5  B.  &  C.  173;  7  D.  &  R.  625;  2  C.  &  P.  163).  There  is 
no  copyright  in  any  libellous  or  immoral  book,  or  picture.  A  Court 
of  Equity  will  not  interfere  in  one  way  or  another.  It  will  not 
grant  an  injunction  to  restrain  a  piracy  of  an  illegal  book  or  picture 
nor  decree  an  account  of  the  profits  made  thereby.  (Per  Lord 
Eldon,  in  Walker  v.  Walker,  1  Ves.  1  ;  in  Southey  v.  Sherwood,  2 
Mer.  435,  and  in  Laiorence   v.  Smith,  Jacob,  471.) 

No  contract  will  be  implied  to  indemnify  a  party  against  the  con- 
sequences of  an  illegal  act,  such  as  the  publication  of  a  libel  ;  and 
any  express  promise  to  that  effect  is  void  {Shackell  v.  Rosier,  3  Sc. 
59;  2  Bing.  N.  C.  634  ;  Arnold  v.  Clifford,  2  Sumner,  238)  ;  for  it 
is  a  promise  on  an  illegal  executory  consideration,  an  incitement  to 
do  an  illegal  act.  And  the  proprietor  of  a  newspaper  convicted  and 
fined  for  the  publication  of  a  libel  which  was  inserted  in  his  paper 
without  his  knowledge  or  consent  by  the  editor,  has  no  right  of 
action  against  the  editor  for  the  damages  sustained  through  such 
conviction.  {Colbum  v.  Patmore,  1  C.  M.  &  R.  73;  4Tyr.677  ; 
and  see  Merryioeather  v.  Mxan,  2  Sm.  L.  C.  8th  ed.  546;  8  T.  R. 
186;  Moscati  v.  Lawson,  7  C.  &  P.  at  p.  35.)  Even  an  express 
promise  to  indemnify  another  if  he  will  publish  a  libel  is  void.  But 
it  has  been  decided  in  America  that  an  express  promise  to  indemnify 
another  against  the  consquences  of  an  illegal  act  already  done  is 
binding.  (  Griffiths  v.  Hardenburgh,  41  N.  Y.  469;  Howe  v.  Bvffalo 
&  Erie  Rail  Co.,  38  Barbour  (N.  Y.)  124.) 

(78) 


introduction: 


So,  too,  a  promise  to  abstain  from  publishing  a  libel  is  no  con- 
sideration for  a  contract.  (Brown  v.  Brine,  1  Ex.  D.  5  ;  45  L.  J. 
Ex.  129;  24   W.   R.   177  ;  33  L.  T.  703.) 

Criminal  proceedings  for  libel  maybe  taken  either  at  common 
law,  or  under  certain  statutes;  the  remedy  may  be  either  by  indict- 
ment or  information;  though  informal  ions  are  only  granted  in 
urgent  cases,  where  the  publication  of  the  libel  is  likely  to  produce 
great  public  mischief  and  must  therefore  be  promptly  suppressed. 

[*9j  Thus  we  see  that  there  are  two  criminal  remedies  for  libel 
— by  criminal  information  and  by  indictment, — in  addition  to  the 
civil  remedy  of  action  for  damages.  It  is  right  that  there  should 
be  a  criminal  remedy  as  well  as  a  civil  one  ;  but  is  it  essential  that 
there  should  be  two  criminal  remedies  ?  Might  not  the  remedy  by 
indictment — involving  as  it  does,  a  triple  investigation  of  the  charge, 
before  the  magistrate,  the  grand  jury,  and  the  petty  jury — be 
abolished  ?  The  remedy  by  way  of  criminal  information  would 
insure  the  punishment  of  all  offenders  in  whose  conviction  the 
public  were  interested,  while  an  end  would  be  put  to  the  numerous 
petty  indictments  for  libel  which  are  obviously  vexatious,  and 
tendered  solely  through  personal  malice.  Moreover,  on  the  argu- 
ment of  the  rule,  the  defendant  himself  may  make  an  affidavit, 
whereas  in  proceeding  by  indictment,  the  defendant's  mouth  is 
more  or  less  closed.  If  one  or  two  of  the  rules  relating  to  criminal 
information  were  relaxed,  I  think  it  would  be  found  that  the  lesser 
criminal  remedy  might  safely  be  dispensed  with,  and  yet  that  no 
offender,  whose  publications  were  a  serious  outrage  on  society, 
would  escape  the  punishment  he  so  justly  merited.  The  Newspaper 
Libel  and  Registration  Act  is  a  step  in  this  direction,  sect.  3  requir- 
ing that  no  indictment  shall  be  presented  against  the  proprietor, 
publisher,  editor,  or  any  other  person  responsible  for  the  publi- 
cation of  a  newspaper  for  any  libel  published  therein  without  the 
written  fiat  of  the  Director  of  Public  Prosecutions:  and  such  fiat 
will  be  refused  whenever  the  Director  considers  that  a  civil  action 
will  meet  the  requirements  of  the  case.  Thus,  now  an  indictment 
against  a  newspaper  involves  a  fourfold  investigation  of  the  facts. 
I  still  retain  the  opinion  expressed  in  the  former  editon  of  this  book 
that  the  better  method  would  be  to  abolish  altogether  indictments 
for  defamatory  libels,  and  to  allow  criminal  informations  to  be  filed 
in  all  cases  in  which  the  Court  shall  be  of  opinion  that  the  civil 
remedy  by  action  is  an  insufficient  protection  to  the  public. 

Lush,  J.,  says,  in  the  passage  cited  ante,  on  p.  7,  the  person 
libelled  may  "  both  sue  for  damages  and  indict  ;  "  and  so  in  strict 
law  he  may.  But  practically  he  has  to  elect  between  his  three 
remedies.  He  cannot  take  both  civil  and  criminal  proceedings  at 
once  ;  a  judge  would  stay  one  or  the  other.  Strictly,  if  he  means  to 
take  both,  he  should  take  criminal  proceedings  first.  But  an  action 
for  damages  after  the  defendant  had  been  either  acquitted  or  con- 
victed for  the  same  libel  would  be  very  hopeless  work.  And  so 
wo'uld  a  criminal  'prosecution  after  an  action.  After  a  rule  for  a 
criminal  information  had  been  made  absolute,  no  civil  action  can 

■  (79) 


8  INTRODUCTION. 

be  brought.  R.  v.  Sparrow,  [*10]  2  T.  R.  198.)  If  it  be  refused 
or  discharged,  the  applicant  can  indict  the  defendant,  or,  by  leave 
of  the  Court,  he  may  bring  a  civil  action  :    see  post,  p.  523. 

The  person  defamed  has  a  civil  remedy  to  recover  damages,  and 
he  can  also  proceed  criminally  by  way  of  information  or  indictment, 
and  have  the  defamer  punished  as  an  offender  against  the  State. 
But  there  is  now  no  method  of  anticipating  or  preventing  a  libel  or 
a  slander  ;  there  is  no  longer  any  censorship  of  the  press  in  this 
country.  Any  man  is  free  to  speak  or  to  write  and  publish  what- 
ever he  chooses  of  another,  subject  only  to  this,  that  he  must  take 
the  consequences,  should  a  jury  deem  his  words  defamatory.  This 
is  what  is  meant  by  "  the  liberty  of  the  press."  (  Commonwealth 
v.  Blanding,  3  Pick.  (20  Mass.)  313.) 

"  The  liberty  of  the  press,"  says  Lord  Mansfield,  in  R.  v.  Dean  of 
St.  Asaph,  3  T.  R.  431,  n.,  "consists  in  printing  without  any  pre- 
vious licence,  subject  to  the  consequences  of  law."  Lord  Ellen- 
borough  says  in  R.  v.  Cobbett,  29Howeh"s  St.  Tr.  49  :  "The  law  of 
England  is  a  law  of  liberty,  and  consistently  with  this  liberty,  we 
have  not  what  is  called  an  imprimatur  ;  there  is  no  such  prelimin- 
ary licence  necessary  ;  but  if  a  man  publish  a  paper,  he  is  exposed 
to  the  penal  consequences,  as  he  is  in  every  other  act,  if  it  be  ille- 
gal." Lord  Kenyon  shortly  puts  it  thus  in  R.  v.  Cuthell,  27 
Howell's 'St.  Tr.  675:  "A  man  may  publish  anything  which 
twelve  of  his  countrymen  think  is  not  blamable." 

But  it  was  by  no  means  always  so  in  England.  It  was  quickly 
perceived  that  the  printing-press  may  be  as  great  a  power  for  evil 
as  for  good.  And  whenever  any  large  proportion  of  any  nation  is 
disaffected  towards  the  Government,  to  allow  a  free  press  is  almost 
impossible. 

(i)  The  first  plan  adopted  by  our  English  monarchs  was  to  keep 
all  the  printing-presses  in  their  own  hands,  and  allow  no  one  to 
print  anything  except  by  special  Royal  licence.  All  printing- 
presses  were  thus  kept  under  the  immediate  supervision  of  the  King 
in  Council',  and  regulated  by  proclamations  and  decrees  of  the  Star 
Chamber  by  virtue  of  the  King's  prerogative.  In  1557  the  Station- 
ers' Company  [*ll]  of  London  was  formed.  The  exclusive  privi- 
lege of  printing  and  publishing  in  the  English  dominions  was  thus 
given  to  ninety-seven  London  stationers  and  their  successors  by 
regular  apprenticeship,  and  the  Company  was  empowered  to  seize 
alt  publications  by  men  outside  their  guild.  Later,  by  a  decree  of 
the  Star  Chamber  in  1586,  one  printing  press  was  allowed  to  each 
University. 

(ii)  Not  content  with  this  government  monopoly  of  the  "  Art  and 
mysterie  of  Printing,"  which  continued,  in  theory  at  all  events,  till 
1637,  Queen  Elizabeth,  in  1559,  determined  to  have  all  books  read 
over  by  loval  bishops  and  privy  councillors  before  they  were  allowed 
to  go  to  the  official  press.  In  1586  the  Star  Chamber  enacted  that 
alfbooks  should  be  read  over  in  manuscript,  and  licensed  by  either 
the  Archbishop  of  Canterbury  or  the  Bishop  of  London,  save  law 
books  which  were  to  be  read"  and  licensed  by  the  Chief  Justice  of 
either  Bench  or  the  Lord  Chief  Baron  (a  practice  which  continued 

(80) 


LIBERTY    OF    THE    PRESS.  9 

down  to  the  middle  of  the  last  century  ;  see  the  prefaces  to  Burrows' 
and  Douglas'  Reports).  Subsequently  the  Master  of  the  Revels 
usurped  the  right  of  revising  poems  and  plays,  and  the  Vice-Chan- 
cellors of  the  Universities  were  allowed  for  convenience  sake  to 
license  books  to  be  printed  at  the  University  presses.  It  was  soon 
found  impossible  to  restrict  the  number  of  printing-presses  in  the 
country,  and  the  Government  therefore  insisted  all  the  more  vehe- 
mently that  no  book  should  be  published  without  a  previous  licence. 
By  the  Star  Chamber  decree  dated  July  11th,  1637,  all  printed 
books  were  required  to  be  submitted  to  the  licensers  and  entered 
upon  the  registers  of  the  Stationers'  Company  before  they  could  be 
published  ;  if  this  was  not  done,  the  printer  was  to  be  fined,  and  for 
ever  disabled  from  exercising  the  art  of  printing,  and  his  press  and 
all  copies  of  the  unlicensed  book  forfeited  to  the  Crown.  The  old 
word  "  Imprimatur  "="  let  it  be  printed"  was  still  used  to  denote 
the  consent  of  the  licenser  to  its  publication.  After  the  abolition 
of  the  Star  .Chamber,  the  Long  Parliament  issued  two  orders, 
March  9th,  1642,  and  June  14th,  1643,  very  similar  in  effect  to  the 
decree  of  the  Star  Chamber  last  mentioned.  Against  these  orders 
Milton  published  his  noble  but  ineffectual  protest,  the  "  Areopagi- 
tica"  (November  24th,  1644).  The  censorship  of  the  press  contin- 
ued in  England  till  1695,  and  then  its  abolition  was  rather  accidental 
than  otherwise.  (See  Macaulay's  "  History  of  England,"  e.  xix., 
vol.  iii.,  pp.  399—405  ;  13  &  14  Car.  II.  c.  33;  Proclamation  o£ 
May  17th,  1680  ;  1  Jac.  II.  c.  17.)  The  only  vestige  remaining  of 
such  censorship  is  the  control  of  the  Lord  Chamberlain  over  plays. 
By.  the  Theatres  Regulation  Act,  1843  (6  &  7  Vict.  c.  68),  s.  14;  it 
is  enacted  [*  12]  that  it  shall  be  lawful  for  the  Lord  Chamberlain 
for  the  time  being,  whenever  he  shall  be  of  opinion  that  it  is  fitting 
for  the  preservation  of  good  manners,  decorum,  or  of  the  public 
peace  so  to  do,  to  forbid  the  acting  or  presenting  any  stage  play,  or 
any  act,  scene,  or  part  thereof,  or  any  prologue  or  epilogue,  or  any 
part  thereof,  anywhere  in  Great  Britain,  or  in  such  theatres  as  he 
shall  specify,  and  either  absolutely  or  for  such  time  as  he  shall 
think  fit, 

(iii)  A  third  plan  is  to  allow  any  book  to  be  printed  and  published 
without  any  supervision  or  licence;  but  as  soon  as  the  attention  of  the 
Government  is  called  to  its  harmful  tendencies,  to  seize  all  the  stock 
at  the  publishers  and  booksellers,  and  prevent  the  publisher  from 
issuing  any  further  copies.  The  Lord  Lieutenant  was  till  the  year 
1875  empowered  to  do  this  in  Ireland,  should  any  work  appear  to 
him  seditious.  Magistrates  in  England  may  deal  thus  with  books 
proved  to  be  obscene  by  virtue  of  Lord  Campbell's  Act  (20  &  21 
Vict.  c.  83).  The  Court  of  Chancery  and  the  House  of  Lords  have 
occasionally  by  injunction  forbidden  the  further  publication  of  libels 
which  they  deemed  contempts  of  Court,  But  in  all  other  cases, 
neither  the  Crown  nor  any  Court  of  law  can  restrain  the  indiscrimi- 
nate sale  or  distribution  of  any  work,  however  pernicious  they  may 
deem  it  to  be,  till  it  has  been  found  to  be  a  libel.  (See  Chapter  XL, 
post,  p.  337. 

(iv)   Our  present  law  permits  any  one  to  say,  write,  and  publish 

(81) 


10  INTRODUCTIOX. 

what  he  pleases  ;  but  if  he  make  a  bad  use  of  this  liberty,  he  must 
be  punished.  If  lie  unjustly  attack  an  individual,  the  person 
defamed  may  sue  for  damages  ;  if,  on  the  other  hand,  the  words  be 
written  or  printed,  or  if  treason  or  immorality  be  thereby  inculca- 
ted, the  offender  can  be  tried  for  the  misdemeanor  either  by  infor- 
mation or  indictment.  In  order  that  the  criminal  might  be  easily 
detected,  it  was  enacted  in  1 7 1  i2  that  no  person,  under  a  penalty  of 
207.,  should  sell  or  expose  for  sale  any  pamphlet  without  the  name 
and  place  of  abode  of  some  known  person  by  or  for  whom  it  was 
printed  or  published,  written,  or  printed  thereon.  (10  Anne,  c.  19, 
s.  113,  repealed  in  1871  by  the  33  &  34  Vict.  c.  99.)  A  similar 
enactment  as  to  newspapers,  6  &  7  Will.  IV.  c.  76,  was  also  repealed 
by  the  32  &  33  Vict.  c.  24.  And  now  every  paper  or  book  which 
is  meant  to  be  published  or  dispersed  must  bear  on  it  the  name  and 
address  of  the  printer  (2  &  3  Vict.  c.  12,  s.  2)  ;  and  the  printer  must 
for  six  calendar  months  carefully  preserve  at  least  one  copy  of  each 
paper  printed  by  him,  and  write  thereon  the  name  and  address  of 
the  person  who -employed  and  paid  him  to  print  it.  (39  Geo.  III.  c. 
79,  s.  29.)  And  now  by  the  Newspaper  Libel  and  Registration  Act, 
1881  (44  &  45  Vict.  c.  60)  a  register  of  newspaper  proprietors  is 
established  [*  13]  at  Somerset  House,  where  any  one  can  ascertain 
for  a  shilling  who  is  the  person  responsible  for  what  has  appeared 
in  any  newspaper.  Newspapers  were  indeed  formerly  regarded  with 
great  jealousy  by  the  Government,  and  subjected  to  heavy  duties. 
Under  Charles  II.  and  James  II.  the  London  Gazette  (a  small  sheet 
appearing  twice  a  week,  every  Monday  and  Thursday)  was  the 
only  paper  permitted  to  publish  political  news.  Even  their  size  was 
regulated  by  statute.  The  6  Geo.  IV.  c.  119,  first  allowed  news- 
papers to  be  printed  on  paper  of  any  size.  Moreover,  till  the  18 
Vict.  c.  27,  they  had  to  be  printed  on  stamped  paper.  But  in  spite 
of  all  such  petty  restrictions,  our  press  has  been,  ever  since  the 
passing  of  Fox's  Libel  Act,  32  Geo.  III.  c.  60,  the  freest  in  the 
world. 

A  man's  reputation  may  also  be  injured  by  the  deed  or  action  of 
another  without  his  using  any  words  ;  and  for  such  an  injury 
he  has  an  action  on  the  case  ;  but  such  cases  are  not  within  the 
scope  of  the  present  treatise. 

Illustrations. 

A  banker  having  in  his  hands  sufficient  funds  belonging  to  his  customer  dis- 
honours his  cheque  :  the  customer  may  recover  substantial  damages,  without 
proof  of  any  special  damage  ;  for  it  is  clear  that  such  an  act  must  injure  the 
customer's  reputation  for  solvency. 

Mdrsetti  v.   Williams,  1  B.  &  Ad.  415. 

Robinsonr.  Marchant,  7  Q.  B.  918  ;  15  L.  J.  Q.  B.  134  ;  10  Jur.  156. 

Rolin  and" another  v.  8teward,P.  O.,  14  C.  B.  595  ;  23  L.  J.  C.  P.  148; 

18  Jur.  576  ;  2  C.  L.  R.  759. 

Defendant  caused  plaintiff's  goods  to  be  seized  on   an   unfounded   claim  for 

debt ;  Hie  neighbours  consequently  deemed  the  plaintiff  insolvent.  The  plaintiff 

was  held  entitled  to  substantial  damages. 

Brewer  v.  Dew  and  another,  11  M.  &  "W.  625. 
Bracegirdle  v.  Orford,  2  Maule  &  S.  77. 
The  defendant  set  up  a  lamp  on  the  wall  adjoining  the  plaintiff's  dwelling- 

(82) 


WORDS    CAUSING    DAMAGE.  1  1 

house  and  he  kept  it  burning  in  the  daytime,  thereby  inducing  the  passers-by  to 
believe  that  plaintiff's  house  was  a  brothel.  This  was  held  to  be  a  trespass  to 
the  wall  and  being  permanent  in  its  nature  also  a  libel  in  effigy. 

Jefferif.iv.  Buncombe,  2  Camp.  3;  11  East,  226. 

SpaM  v.  Massey,  2  Stark.  559. 

Plunket  v.Oilmore,  Fortescue,  211. 
And  so  as  to  "  riding  Skimmington,"  "  rough  music,"  burning  in  effigy,  and 
other  modes  of  holding  a  man  up  to  public  obloquy  without  especial  words  of 
defamation, 

See  Sir  William  Bolton  v.  Dean,  cited  in  Austin  v.  Culpepper,  Skin. 
123  ;  2  Show.  313. 

R.  v.  Roberts  and  others,  3  Keble,  578. 

Mason  v.  Jennings,  Sir  T.  Raym.  401. 

Cropp  v.  Tilncy,  3  Salk.  226. 

Eyre  v.  Garlick,  42  J.  P.  68. 
[*  14]  So  too  in  actions  of  false  imprisonment  and  malicious  prosecution,  the 
jury  may  award  damages  for  the  injury  done  to  the  plaintiff's  reputation  by 
the  charge  made  against  him,  and  by  his  being  marched  in  custody  through  the 
public  streets  ;  although  in  the  former,  the  gist  of  the  action  is  the  direct  trespass 
to  the  person,  and  in  the  latter  the  maliciously  setting  the  law  in  motion  with- 
out reasonable  or  probable  cause. 

In  Eoman  law  there  are  many  instances  given  in  which  a  man's  reputation 
was  assailed,  not  by  words,  but  by  acts.  E.  g.  : 

(i)  By  refusing  to  accept  a  solvent  peison  as   surety  for  a  debt,  intending 

thereby  to  impute  that  he  is  insolvent.     (D.  2,  8,  5,   1 .) 
(ii)  By  claiming  a  debt  that  is   not  due,  or  seizing   a  man's   goods  for  a 

fictitious  debt,  with  intent  to  injure  his  credit.  (Gai.  III.  220;  Just. 

Inst.  IV.  iv.  1  ;  D.  47,. .10,  15,  33.) 
(iii)  By  claiming  a  person  as  your  slave,  knowing  him  to  be  free.  ( D.  47, 

in,  12,  &  22.) 
(iv)  By  forcing  your  way  into  the  house  of  another.     (D.  47,  10,  23,  &44.) 
(v)  By  persistently  following  about  a   matron  or  young  girl  respectably 

dressed,  such  constant  pursuit  being  an  imputation  on  their  chastity. 

(Gai.  III.  220  ;  Just.  Inst.  IV.  iv.  1  ;  D.  47,  10,  15,  15—22.) 
(vi)  By  needlessly  fleeing  for  refuge  to  the  statue  of  the  emperor,  thereby 

making  it  appear  that  some  one  was  unlawfully  oppressing  you. 

(D.  48, 16,  28,  7);  though  it  is  difficult  to  see  in  this  case  how  it 

was  determined  who  was  the  right  plaintiff. 

On  the  other  hand,  words  may  cause  a  man  damage  without  in 
any  way  affecting  his  reputation  ;  and  for  such  words,  if  spoken 
without  lawful  occasion,  an  action  on  the  case  will  lie,  provided  it 
can  be  shown  that  such  damage  is  the  natural  and  necessary  con- 
sequence of  the  words,  or  was  the  result  which  the  speaker  intended 
and  designed. 

Illustration. 

I. — Words  disparaging  something,  or  impugning  plaintiff's 

TITLE  THERETO. 

If  A.  falsely  and  maliciously  disparages  an  article  which  B.  makes  or  sells, 
and  special  damage  results  therefrom,  an  action  lies,  although  no  imputation 
was  cast  on  B.  's  personal  or  professional  character. 

Young  v.  Macrae,  3  B.  &  S.  264  ;  32  L.  -J.  Q.  B.  0  ;  11  TV  R.  63  ; 

9  Jur.  N.  S.  539  ;  7  L.  T.  354. 
And  see  pp .  147 — 150. 
To  assert  falsely  and  iinnecessarily  that  there  is  a  flaw  in  my  title  to  the  free- 
hold I  own,  is  actionable  if  I  thereby  am  prevented  from  selling  it . 
Banister  v.  Banister,  4  Rep.  17. 
And  see  pp.  138—147. 
To  say  falsely  that  a  ship  is  unseaworthy,  intending  thereby  to  deter  seamen 

(83) 


12  INTRODUCTION. 

[*  15]  from  sailing  in  her,  is  actionable  if  in  consequence  they  refuse  to  go  to 
sea  in  her. 

Casey  v.  Arnott,  2  C.  P.  D.  24  ;  46  L.  J.   C.  P.  3 ;  25  W.  It.  46  ; 
35  L.  T.  424. 
To  set  up  a  false  and  foundless  claim  of  lien  on  goods  I  have  bought  is 
actionable',  if  special  damage  ensue. 

Green  v.  Button,  2  C.  M.  &  It.  707. 
N.B.  An  attack  on  a  man's  property  or  on  the  tilings  he  makes  or  sells 
may  sometimes  be  also  an  indirect  attack  on  himself.     See  pp.  30,  133. 

II. — WORDS   DISPARAGING   THE   REPUTATION   OP   SOME   PERSON    OTHER   THAN 

THE   PLAINTIFF. 

As  a  rule,  A.  cannot  sue  for  words  defamatory  of  B.  although  he  may  suffer 
loss  or  inconvenience  therefrom.  It  is  generally  impossible  to  satisfy  the  Court 
that  the  speaker  intended  this  result  or  that  it  is  the  natural  and  necessary 
consequence  of  his  words. 

Ashley  v.  Harrison,  1  Esp.  48  ;  Peake,  164  vel  256. 
Brayne  v.  Cooper,  5  M.  &  W.  249. 
A  brother  cannot  sue  for  slander  of  his  sister. 

Subbaiyar  v.  Kristnaiyar  and  another,  I.  L.  It.,  1  Madras,  383. 
Defendants  attended  the  funeral  ceremony  of  Premji  Ludha,  the  headman  of 
the  Karad  caste,  and  there  before  a  large  concourse  of  people  made  a  violent 
attack  on  the  moral  and  religious  character  of  the  deceased,  declaring  that  he 
was  "  path,"  a  term  of  great  opprobrium  and  reproach  among  Hindoos.  Many 
of  those  assembled  left  at  once  in  consequence,  and  the  family  of  the  deceased 
suffered  great  pain  and  annoyance,  and  also  were  much  lowered  in  public  esti- 
mation. Plaintiff  sued  as  the  heir  and  nearest  relation  of  the  deceased  for 
damages.     Held  no  action  lay. 

Lnekumsey  Rowji  v.  Ilurbun  Nursey  and  others,  I.  L.  R.,  5  Bom. 

580. 
But  see  R.  v.  Topham,  4  T.  R.  126,  post,  p.  424. 
But  a  husband  may  recover,  without  joining  his  wife  as  a  co-plaintiff,  for 
damage  caused  to  himself  by  words  defamatory  solely  of  her. 
Baldwin  v.  Flower,  3  Mod.  120. 
Guy  v.  Gregory,  9  C.  &  P.  584. 
Dengate  v.  Gardiner,  4  M.  &  W.  5  ;  2  Jur.  470. 
Wilson  v.  Goit,  3  Smith  (17  N.  Y.  R.)445. 
If  A.  and  B.   are  rival  shopkeepers,  and  B.  spreads  a  false  and  groundless 
report  that  A.'s  shopman  has  the  scarlet  fever,  intending  thereby  to  prevent  the 
public  from  going  to  A.'s  shop,  and  succeeds  in  this  malicious  device,  A.  can 
sue  B. 

Per  Kellv,  C.  B.,  in  Riding  v.  Smith,  1  Ex.  D.  96  ;  45  L.  J.  Ex. 
281  ;  24  W.  R.  487  ;  34  L.  T.  500. 

III. — Other    words. 

"  Undoubtedly  all  words  are  actionable  if  a  special  damage  follows." 

Per  Heath,  J.,  in  Moore  v.  Meagher,  1  Taunt.  44. 
If  a  man  induces  a  servant  to  break  his  contract  with  his  master  and  quit  hi? 
employment,  the  master  has  an  action  per  quod  servitium  amisit. 

Lumley  v.  Gye,  2  E.  &  B.  216  :  22  L.  J.  Q.  B.  463  ;  17  Jur.  827. 
Bowen  v.  Hall  and  others,  6  Q.  B.  D.  333  ;  50  L.  J.  Q.  B.  305  ;  29 
W.  R.  367  ;  44  L.  T.  75  ;  J.  P.  373. 
[*  16]  If  a  man  menace  my  tenants  at  will,  of  life  and  member,  per  quod  they 
depart  from  their  tenures,*  an  action  xqwn  the  case  will  lie  against  him,  but  the 
menace  without  their  departure  is  no  cause  of  action. 

Conesby's  Case,  Year  Book,  9  Hen  VII.,  pp.  7,  8  ;  1  Roll.  Abr.  108. 
If  defendant  threatens  the  plaintiff's  workmen,  so  that  they  do  not  dare  to  go 
on  with  their  work,  whereby  the  plaintiff  loses  the  selling  of  his  goods,  an 
action  lies. 

Garret  v.  Taylor  (1621),  Cro.  Jac.  567  ;  1  Roll.  Abr.  108. 
Tartleton  and,  others  v.  McGaidey,  Peake  270. 
(84) 


WORDS    CAUSING    DAMAGE.  13 

And  see  Springhead  Spinning  Co.  v.  Riley,  L.  R.  6  Eq.  551  ;  37  L.  J. 
Ch.  889  ;  16  W.  R   1138  ;  19  L.  T.  64. 

Skinner  v.  Kitch,  L.  R.  2  Q.  B.  393  ;  36  L.  J.  M.  C.  322  ;  15  W.R. 
830  ;  16  L.  T.  413. 
If  a  man  should  lie  in  wait  "  and  fright  the  hoys  from  going  to  school,  that 
schoolmaster  might  have  an  action  for  the  loss  of  his  scholars." 

Per  Holt,  C.  J.,  in  Keeble  v.  Hickeringill,  11  East,  576,  n. 
Plaintiff  was  making  money  at  Glasgow  by  printing  silk  handkerchiefs  with 
an  ornamental  design  :  defendant,  hoping  to  acquire  that  design  for  himself, 
falsely  represented  to  the  plaintiff  that  it  was  a  registered  pattern,  that  the  true 
owner  had  compelled  him  to  give  up  plaintiff's  name,  and  was  about  to  proceed 
against  plaintiff  in  Chancery  for  an  injunction  ;  plaintiff,  naturally  alarmed, 
stayed  the  execution  of  certain  orders  in  hand  for  handkerchiefs  with  that 
design  ;  and  travelled  up  to  London  to  explain  matters  to  the  supposed  true 
owner  ;  defendant  meanwhile  went  on  printing  and  selling  silk  handkerchiefs 
printed  with  the  design,  Held,  that  the  plaintiff  had  a  good  cause  of  action,  it 
appearing  that  defendant  had  knowingly  uttered  a  falsehood  with  intent  to 
deprive  plaintiff  of  a  benefit  and  acquire  it  to  himself,  and  the  damage  naturally 
flowing  from  plaintiff's  belief  in  the  truth  of  defendant's  statement, 

Barky  v.  Walford,  9  Q.  B.  197  ;  15  L.  J.  Q.  B.  369  ;  10  Jur.  917. 


(85) 


CHAPTER  II.  [•«] 

DEFAMATORY    WORDS. 

Words  which  produce  any  appreciable  injury  to  the  reputation  of 
another  are  called  Defamatory. 

Diffamare  est  in  maid  famd  ponere  (Bartol).  The  question  in  each 
case  therefore  is  :  Has  the  reputation  of  this  individual  plaintiff 
been  appreciably  impaired  in  consequence  of  the  words  employed 
by  the  defendant  ?  No  general  rule  can  be  laid  down  defining  ab- 
solutely and  once  for  all  what  words  are  defamatory  and  what  not. 
Words  which  would  seriously  injure  A.'s  reputation  might  do  B.'s 
no  harm.     Each  case  must  be  decided  on  its  own  facts. 

Defamation  was  formerly  an  ecclesiastical  offence,  cognizable 
only  in  the  spiritual  court  ;  and  then  defamatory  words  would  be 
such  as  the  ecclesiastical  court  would  punish.  But  all  such  suits 
were  abolished  by  the  18  &  19  Vict.  c.  41.  So  now  it  is  convenient 
to  use  the  word  "  Defamation  "  as  a  general  term  embracing  both 
"  Slander"  and  "  Libel."     See  6  &  7  Vict.  c.  96,  s.  6. 

If  in  any  given  case  the  words  employed  by  the  defendant 
have  appreciably  injured  the  plaintiff's  reputation,  then  the  plain- 
tiff has  suffered  an  injury  which  is  actionable  without  proof  of  any 
damage.  Every  man  has  an  absolute  right  to  have  his  person,  his 
property,  and  his  reputation,  preserved  inviolate.  "  His  reputation 
is  his  property,  and,  if  possible,  more  valuable  than  other  property." 
(Per.  Malins,  V.  C,  in  Dixon  v.  Rolden,  L.  R.  7.  Eq.  492  ;  17  W.'R. 
482  ;  20  L.  T.  357.)  "Indeed,  if  we  reflect  on  the  degree  of  suffer- 
ing occasioned  by  loss  of  character,  and  compare  it  with  that  occa- 
sioned by  loss  of  property,  the  amount  of  the  [*18]  former  injury 
far  exceeds  that  of  the  latter."  (Per  Best,  C.J.,  in  Be  Crespigny 
v.  Wettesley,  5  Bing.  at  p.  406.)  And  just  as  any  invasion  of  a 
man's  property  is  actionable  without  proof  of  any  pecuniary  loss,  so 
is  any  disparagement  of  his  reputation.  "  It  was  the  rule  of  Holt, 
C.J.,"to  make  words  actionable  whenever  they  sound  to  the  disreputa- 
tion of  the  person  of  whom  they  were  spoken,  and  this  was  also 
Hale's  and  Twisden's  rule,  and  I  think  it  a  very  good  rule."  (Per 
Fortescue,  J.,  in  Button  v.  Ileyward,  8  Mod.  24,  referring  perhaps 
to  Baker  v.  Pierce,  6  Mod.  24.) 

Whenever  the  words  clearly  "  sound  to  the  disreputation  "  of  the 
plaintiff,  there  is  no  need  of  further  pi-oof,  they  are  defamatory  on 
the  face  of  them,  and  actionable  per  se.  The  injury  to  the  reputa- 
tion is  the  gist  of  the  action,  and  wherever  that  is  clear,  there  is  no 
need  to  inquire  whether  there  is  any  injury  to  the  pocket  as 
well.     But  where  it  is  by  no  means  clear  from  the  words  themselves 

(86) 


GIST    OF    THE    AtiTIOST.  15 

that  they  must  have  injured  the  plaintiff's  reputation,  there  the 
Court  requires  proof  of  some  special  damage  to  show  that  as  a  mat- 
ter of  fact  the  words  have  in  this  case  impaired  the  plaintiff's  good 
name.  Words  which  are  merely  uncivil,  words  of  idle  abuse,  will 
not  touch  his  credit,  and,  therefore,  are  clearly  no  ground  for  an 
action,  unless  it  can  be  shown  that  in  fact  some  appreciable  damage 
to  the 'plaintiff  has  followed  from  their  use.  The  injury  for  which 
compensation  is  sought  must  be  capable  of  being  assessed  by  a  jury. 
De  minimis  non  curat  lex. 

Mr.  Townshend,  the  author  of  a  learned  American  treatise  on 
Slander  and  Libel,  appears  to  me  to  fall  into  an  error  on  this  point. 
He  devotes  a  whole  chapter  to  maintaining  "  that  pecuniary  loss  to 
the  plaintiff  is  the  gist  of  the  action  for  slander  or  libel.  If  the  lan- 
guage published  has  not  occasioned  the  plaintiff  pecuniary  loss 

(actual  or  implied),  then  no  action  can  be  maintained In 

theory,  the  action  for  slander  or  libel  is  always  for  the  pecuniary 
injury,  and  not  for  the  in  jury  to  the  reputation  "  (c.  iv.).  He  might  as 
well  contend  that  the  gist  of  an  action  of  assault  and  battery  was  the 
doctor's  bill  the  plaintiff  had  to  pay.  Surely  the  injury  to  the  [*19] 
plaintiff's  reputation  is  the  gist  of  the  action,  and  special  damage  is 
but  evidence  of  that  injury,  and  is  necessary  only  where  without  some 
such  evidence  it  would  not  be  clear  that  the  plaintiff's  reputation 
had  in  fact  been  impaired.  This  is  the  law  in  America  as  well  as  in 
England  ;  see  the  judgments  of  the  Court  of  Appeals  in  Terwilliger 
v.  Wands,  3  Smith  (17  N.  Y.  R.),  59,  63,  and  Wilson  v.  Goit,ibid. 
443. 


PART  I. 


LIBEL. 


In  cases  of  libel,  any  words  will  be  deemed  defamatory  which 
expose  the  plaintiff  to  hatred,  contempt,  ridicule,  or  obloquy,  which 
tend  to  injure  him  in  his  profession  or  trade,  or  cause  him  to  be 
shunned  or  avoided  by  his  neighbors. 

"  Everything,  printed  or  written,  which  reflects  on  the  character 
of  another,  and  is  published  without  lawful  justification  or  excuse, 
is  a  libel,  whatever  the  intention  may  have  been."  (Per  Parke, 
B.,  in  O'Brieti  v.  Clement,  15  M.  &  W.  435.)  The  words  need  not 
necessarily  impute  disgraceful  conduct  to  the  plaintiff  ;  it  is  suffi- 
cient if  they  render  him  contemptible  or  ridiculous.  (  Cropp  v. 
Tilney,  3  Salk.  226  ;  Vitters  v.  Monsley,  2  Wils.  403  ;  Watson  v. 
Trash,  6  Ohio,  531.) 

Any  written  words  are  defamatory  which  impute  to  the  plaintiff 
that  he  has  been  guilty  of  any  crime,  fraud,  dishonesty,  immoral- 
ity, vice,  or  dishonorable  conduct,  or  has  been  accused  or  suspected 
of  any  such  misconduct  ;    or  which  suggest  that  the  plaintiff  is 

(87) 


16  DEFAMATORY    WORDS. 

suffering  from  aiiy  infectious  disorder  ;  or  which  have  a  tendency 
to  injure  him  in  his  office,  profession,  calling  or  trade.  And  so,  too, 
are  all  words  which  hold  the  plaintiff  up  to  contempt,  hatred, 
scorn,  or  ridicule,  and  which,  by  thus  engendering  an  evil  opinion 
[*20]  opinion  of  him  in  the  minds  of  right-thinking  men,  tend  to 
deprive  him  of  friendly  intercourse  and  society. 

A  libel  need  not  necessarily  be  in  writing  or  printing.  Any  car- 
icature or  scandalous  painting  or  effigy  will  constitute  a  libel.  (5 
Rep.  125  b  ;  Anon.,  11  Mod.  99  ;  Austin  v.  Culpepper,  2  Show. 
313  ;  Skin.  123  ;  Jeffries  v.  Buncombe,  11  East,  220  ;  Bu  JBost  v. 
Beresford,  2  Camp.'  511.)  But  it  must  be  something  permanent  in 
its  nature,  not  fleeting  as  are  spoken  words. 

It  appears  to  be  impossible  to  define  a  libel  with  any  greater 
precision  or  lucidity.     I  proceed  at  once  therefore  to  give  instances. 

Illustrations. 

It  is  libellous  to  write  and  publish  of  a  man  that  he  is — 
"  an  infernal  villain," 

Bell  v.  Stone,  1  B.  &  P.  331  ; 
"an  impostor," 

Cooke  v.  Hughes,  R.  &  M.  112  ; 

Campbell  v.  Spottiswoode,  3  B.  &  S.  709  ;  32  L  J.  Q.  B.  185  ;  9  Jur. 
N.  S.  1069  ;  11  W.  R.  509  ;  8  L.  T.  201  ; 
"  a  great  defaulter," 

Warman  v.  Bine,  1  Jur.  820  ; 
"  a  hypocrite," 

Thorley  v.  Lord  Kerry,  4  Taunt.  355  ;  3  Camp.  214  n.; 
"  a  frozen  snake," 

Hoare  v.  Siherlock,  (No.  1,  1848),  12  Q.  B.  624  ;  17  L.  J.  Q.  B.  306 ; 
12  Jur.  695  ; 
"  a  rogue  and  a  rascal," 

Per  Gould,  J.,  in  Villers  v.  Monsley,  2  Wils,  403  ; 
"  a  dishonest  man," 

Per  cur.  in  Austin  v.  Culpepper,  Skin.  124  ;  2  Show.  314  ; 
"a  mere  man  of  straw," 

Eaton  v.  Johns,  1  Dowl.  N.  S.  602  ; 
"  an  itchy  old  toad," 

Villers  v.  Monsley,  2  Wils.  403  ; 
"  a  desperate  adventurer,"  association  with  whom  "  would  inevitably  cover" 
a  gentleman  "  with  ridicule  and  disrepute," 

Wakley  v.  Bealey,  7  C.  B.  591  ;  18  L.  J.  C.  P.  241  ; 
that  "he  grossly  insulted  two  ladies," 

Clement  v.  Chivis,  9  B.  &.  C.  172  ;  4  M.  &.  R.  127  ; 
that  "  he  is  unfit  to  be  trusted  with  money," 

Cheese  v.  Scales,  10  M.  &  W.  488  ;  12  L.  J.  Ex.  13  ;  6  Jur.  958  ; 
that  "  he  is  insolvent  and  cannot  pay  his  debts," 

Metropolitan  Omnibus  Co.  v.  Hawkins,  4H.  &.  N.  87  ;  28  L  J.  Ex. 
201  ;  5  Jur.  N.  S.  226  :  7  W.  R,  265  ;  32  L.  T.  (Old  S.)  281 ;  ^  _ 
[*21]  that  "  he  was  once  in  difficulties,"  though  it  is  stated  that  such  difficulties 
are  now  at  an  end, 

Cox  v.  Lee,  L.  R.  4  Ex.  284  ;  38  L.  J.  Ex.  219  ; 
that  plaintiff  "will  not  sue  in  a  particular  county,    because  he  is  known 
tlicrc  " 

Cooper  v.  Greeley,  1  Denio  (N.  Y.)  347  ; 
that  he  is    "the  most  artful  scoundrel  that  ever  existed,"  "  is  in  every  person's 
debt,"  that  "  his  ruin  cannot  be  long  delayed,"  that  "  he  is  not  deserving  of 
the  slightest  commiseration." 

Rutherford  v.  Evans,  6  Bing.  451  ;  8  L.  J.  (Old  S.^  C.  P.  86  ; 

(88) 


LIBEL.  17 

that  he  is  "  at  the  head  of  a  gang  of  swindlers,"  that  he  is  "a  common  informer, 
and  has  been  guilty  of  deceiving  and  defrauding  divers  persons  with  whom 
he  had  dealings," 

1' Anson  v.  Stuart,  1  T.  R.  748  ;  2  Smith's  L.  C.  6th  ed.  57  ; 
R.  v.  Sounder*,  Sir  Thos.  Raym.  201  ; 
that  the  plaintiff  sought  admission  to  a  club  and  was  black-balled,  and  bolted 
the  ntxt  morning  without  paying  his  debts, 

O'Brien  v.    Clement,  16  M.  &  W.  15<J  ;    16  L.  J.  Ex.  76  ;  4  D.  &  L. 
343. 
So  it  is  libellous  to  write  and  publish  of  a  landlord  that  he  put  ina  distress 
in  order  to  help  his  insolvent  tenant  to  defraud  his  creditors. 
Haire  v.  Wilson,  9  B.  &  C.  643  ;  4  M.  &  R.  605. 
It  is  libellous  for  a  defendant  to  write  a  letter  charging  his  sister  with  having 
unnecessarily  made  him  a  party  to  a  Chancery  suit,  and  adding,  "  It  is  a  pleasure 
to  her  to  put  me  to  all  the  expense  she  can." 

Fray  v.  Fray,  17  C.  B.  N.  S.  603  ;  34  L.  J.  C.  P.  45  ;  10  Jur.  N.  S. 
1153. 
It  is  libellous  to  write  of  a  lady  applying  for  relief  from  a  charitable  society, 
that  her  claims  are  unworthy,  and  that  she  spends  all  the  money  given  her  by 
the  benevolent  in  printing  circulars  filled  with  abuse  of  the  society's  secretary. 
Hoare  v.  Silverlock  (No.  1,  1848),  12  Q.  B.  624  ;  17  L.  J.  Q.  B.  306  ; 
12  Jur.  695. 
It  is  libellous  to  charge  the  plaintiff  with  having  published  a  libel. 

Brookes  v.  Tichborne,  5  Exch.  929  ;  20  L.  J.  Ex.  69  ;  14  Jur.  1122. 
To  state  in  writing  that  the  plaintiff  is  insane,  or  that  her  mind  is  affected,  is 
libellous,  if  false. 

Morgan  v.  Lingen,  8  L.  T.  800. 
It  is  libellous  for  the  manager  of  a  private  lunatic  asylum  to  write  of  a  lady, 
"  I  have  been  to  her  house  this  morning  and  seen  her.     I  think  it  my  duty  to 
inform  you  it  is  imperative  that  immediate  steps  to  secure  her  should  be  taken." 
Welclon  v.  Winslow,  Times  for  March  14th-l9th,  1884. 
Ironical  praise  may  be  a  libel  ;  e.g. ,  calling  an  attorney  "an  honest  lawyer." 
Boydell  v.  Jones,  4  M.  &  W.  446  ;  7  Dowl.  210  ;1H.&  H.  408". 
R.  v.  Brown,  11  Mod.  86  ;  Holt,  425. 
Sir  Baptist  Hicks'  Case,  Hob.  215  ;  Poph.  139. 
An  obituary  notice  of  a  living  person  may  be  a  libel. 

McBride  v.  Ellis,  9  Mich.  313. 
It  is  libellous  to  impute  to  a  Presbyterian  "gross  intolerance"  in  not  allow- 
ing his  hearse  to  be  used  at  the  funeral  of  his  Roman  Catholic  servant. 
Teacy  v.  McKenna,  Ir.  R.  4  C.  L.  374. 
[*22]     It  is  prima  facie  libellous  to  charge  the  plaintiff  with  ingratitude, 
even  though  the  facts  on  which  the  charge  is  based  be  stated,  and  they  do  not 
bear  it  out. 

Cox  v.  Lee,  L.  R.  4  Ex.  284  ;  38  L.  J.  Ex.  219. 
It  is  libellous  to  state  in  a  newspaper  of  a  young  nobleman  that  he  drove  over 
a  lady  and  killed  her  and  yet  attended  a  public  ball  that  very  evening  (although 
this  only  amounts  to  a  charge  of  unfeeling  conduct). 

Churchill  v.  Hunt,  1  Chit.  480 ;  2  B.  &  A.  685. 
It  is  libellous  to  write  and  publish  of  a  lady  of  high  rank  that  she  has  her 
photograph  taken  incessantly,  morning,  noon,  and  night,  and  receives  a  com- 
mission on  the  sale  of  such  photographs. 

R.  v.  Rosenberg,  Times  for  Oct.  27th,  28th,  1879. 
It  is  a  libel  to  impute  or  imply  that  a  grand  jury  have  found  a  true  bill 
against  the  plaintiff  for  any  crime. 

Harvey  v.  French,  1  Cr.  &  M.  11. 
It  is  libellous  to  publish  a  highly  coloured  account  of  judicial  proceedings, 
mixed  with  the  reporter's  own  observations  and  conclusions  upon  what  passed 
in  Court,  containing  an  insinuation  that  the  plaintiff  had  committed  perjury. 

Stiles  v.  JVokes,  7  East,  493 ;  same  case  sub  nomine  Carr  v.  Jones,  3 
Smith,  491. 
It  is  libellous  to  write  and  publish  of  the  editor  of  a  paper  that  he  is  "  a  ccn- 
2  Lib.  &  Slan.  (89) 


18  DEFAMATORY    WORDS. 

victed  felon  "and  "a  felon  editor;"  even  although  the  fact  is  that  he  was 

convicted  of  felony,  and  underwent  a  term  of  imprisonment  with  hard  labour. 

Legman  v.  Latimer  and  others,  3  Ex.  D.  15,  352  ;  4G  L.  J.  Ex.  705  ; 

17  I,.  J.  Ex.  470  ;  25  W.  R.  751  ;  2(5  W.  R.  305  ;  37  L.  T.  360,  819. 

It  is  libellous  to  write  about  the  plaintiff's  "defalcations." 

Ilr  a  ton  v.  Downes,  1  F.  &  F.  668. 
It  is  libellous  to  call  a  manufacturer  a  "  truckmaster,"  for  this  implies  that 
he  has  been  guilty  of  practices  in  contravention  of  the  Truck  Act. 

Homer  v.  Taunton,  5  II.  &  N.  601  ;  29  L.  J.  Ex.  318  ;  8W.E.  499  ; 
2LT.  512. 
It  is  libellous  to  write  and  publish  that  a  child  is  illegitimate. 

s'idby  v.  Sun  Printing  Association,  38  Hun.  (45  N.  Y.  Supr.  Ct.)  474. 
It  is  libellous  to  write  and  publish  of  a  man  that  a  certain  notorious  prostitute 
is  "  under  his  patronage  or  protection," 

More  v.  Bennett  (1872),  48  N.  Y.  R.  (3  Sickel),  472  ; 
Or  of  a  married  man  that  his  conduct  towards  his  wife  is  so  cruel  that  she  was 
compelled  to  summon  him  before  the  magistrates. 

Hakewell  v.  Ingram,  2  C.  L.  Rep.  (1854),  p.  1397. 
It  is  libellous  "to  paint  a  man  playing  at  cudgels  with  his  wife." 
Per  Lord  Holt,  C.J.',  in  Anon.,  11  Mod.  99. 
See  Du  Bost  v.  Beresford,  2  Camp.  511. 
It  is  a  libel  on  a  married  lady  to  assert  that  her  husband  is  petitioning  for  a 
divorce  from  her. 

R.  v.  Leng,  34  J.  P.  309. 
It  is  a  libel  for  a  husband  to  publish  in  writing  that  A.  has  committed  adul- 
tery with  his  wife. 

Per  Kelly,  C.B.,  in  Brown,  v.  Brine,  1  Ex.  D.  5  ;  45  L.  J.  Ex.  129  ; 
'      24  W.  R.  177  ;  33  L.  T.  703. 
It  is  libellous  to  charge  in  writing  a  man  with  having   cheated  at  dice  or 
on  the  [*  23]   turf,    although  all   gambling    and  horse-racing  transactions  are 
illegal  or  at  least  void. 

Greville  v.  Chapman,  5  Q.  B.  731  ;    13  L.  J.  Q.  B.  172  ;  8  Jur.  189  ; 

D.  &  M.  553. 
Yrisarri  v.  Clement,  3  Bing.  432 ;  11  Moore,  308  ;  2  C.  &  P.  223. 
It  is  libellous  to  call  a  man  a  "black-leg"  or  a  "black-sheep."     But  there 
should  be  an  averment  that  these  words  mean  a  person  guilty  of  habitually 
cheating  and  defrauding  others. 

Jlf'Gregor  v.  Gregory,  11  M.  &  W.  287  ;    12  L.  J.  Ex.  204  ;   2  Dowl. 

N.  S.  769. 
O'Brien  v.  Clement,  16  M.  &  W.  166  ;  16  L.  J.  Ex.  77. 
And  see  Bar, ait  v.  Allen,  1  F.  &  F.  125  ;  27  L.  J.  Ex.  412  ;  4  Jur. 
N.  S.  488  ;   3  H.  &  N.  376. 
It  is  libellous  to  write   and   publish  of  the    plaintiff  the  following   words: 
"  Digby  has  had  a  tolerable  run  of  luck.     He  keeps  a  well-spread  side-board, 
but  I  always  consider  myself  in  a  family  hotel  when  my  legs  are  under  his 
table,  for  the  bill  is  sure  to  come  in  sooner  or  later,  though  I  rarely  dabble  in 
the  mysteries  of  ecarte  or  any  other  game.     The  fellow  is  as  deep  as  Crockford, 
and  as  knowing  as  the  Marquis.     I  do  dislike  this  legal  profession." 

Digby  v.  Thompson  and  another,  4  B.  &  Ad.  821  ;  1  N.  &  M.  485. 
It  is  libellous'to  write  and  publish  of  a  clergyman  that  he  poisoned   foxes  on 
the  estate  of  Sir  M.  S  ,  in  a  fox-hunting  county,  and  had  been  hung  up  in 
effigy  in  consequence  of  such  "  dastardly  behaviour." 

R.  v.  Cooper,  8  Q.  B.  533  ;  15  L.  J.  Q.  B.  206. 
Foulger  v.  Miceomb,  L.  R.  2  Ex.  327  ;   36  L.  J.  Ex.  169  ;  15  W.  R. 
1181  ;  16  L.  T.  595. 
It  is  libellous  to  publish  in  a  newspaper  a  story  of  the  plaintiff  calculated  to 
make  him  ludicrous,  though  he  had  previously  told  the  same  story  of  himself. 
Cook  v.  Ward,  6  Bing.  409  ;  4  M.  &  P.  99. 
But  it  is  not  defamatory  to  write  of  another  that  he  is  "Man  Friday." 
Forbes  v.  King,  1  Dowl.  672  ;  2  L.  J.  Ex.  109. 
For,  as  Lord  Denman,  C.  J.,  observes  in  Hoare  v.  Silrerlock  (No.  1,  1848),  12 
Q.  B.  623  ;  17  L.  J.  Q.  B.  303  :    "  That  imputed  no  crime  at  all.     The  '  Man 

(90) 


I.II5EL.  19 

Friday,'  we  all  know,  was  a  very  respectable  man,  although  a  black  man,  and 
black  men  have  not  been  denounced  as  criminals  yet."  The  law  is  otherwise 
in  the  United  States. 

King  v.   Wood,  1N.&M.  (South  Car.)  184. 
The  Court  of  Exchequer  Chamber  thought  the  words  "If  Mrs.  W.  chooses 
to  entertain  the  Duke  of  Brunswick  she  does  what  very  few  will  do,"  a  libel  on 
the  Duke. 

Gregory  v.  The  Queen  (No.  1),  15  Q.   B.  957  ;    15  Jur.  743  ;  5  Cox, 
C.  C.247. 
Where  the  defendants  posted  up  in  a  public  club-room  the  following  notice  : 
"The  Rev.  J.  Robinson  and  Mr.  J.   K. ,  inhabitants  of  this  town,  not  being 
persons  that  the  proprietors  and  annual  subscribers  think  it  proper  to  associate 
with,  are  excluded  this  room  ;  "    this  was  held  no  libel  ;  seal  quaere. 
Robinson  v.  Jermyn,  1  Price,  11. 
It  is  not  libellous  to  publish  in  a  newspaper  that  the    plaintiff  has  sued  his 
mother-in-law  in  the  County  Court. 

Cox  v.  Cooper,  12  W.  R   75  ;  9  L.  T.  329. 
[*24]     It  is  not  libellous  to  send  a  circular  to  the  members  of  a  certain  society, 
stating  that  the  plaintiff's  are  not  proper  persons  "  to  be  proposed  to  be  balloted 
for  as  members  thereof." 

Goldstein,  v.  Foss,  6  B.  &  C,  154  ;  (in  Ex.  Ch.)  4Bing.  439  ;  2  C.  &  P. 
252  ;  2  Y.  &  J.  146  ;  1  M.  &  P.  402. 
It  is  not  libellous  to  print  and  circulate  a  handbill,  "  B.  Oakley,  of  Chilling- 
ton,  Game  and  Rabbit  Destroyer,  and  his  wife  the  seller  of  the  same  in  country 
and  town,"  unless  it  be  averred  and  proved  that  the  words  imputed  some  illegal 
or  improper  slaughter  or  sale  of  game  or  rabbits. 
R.  v.    James  Yates,  12  Cox,  C   C.  233. 
It  is  not  a  libel  to  write  and  publish  in  the  Times: — "We  are  requested  to 
state  that  the  honorary  secretary  of  the  Tichborne  Defence  Fund  is  not  and 
never  wras  a  captain  in  the  Royal  Artillery  as  he  has  been  erroneously  described," 
for  these  words  do  not  impute  that  the  plaintiff  had  so  represented  himself. 
Hunt  v.  Goodlake,  43  L.  J.  C.  P.  54 ;  29  L.  T.  472. 
Defendant  posted  up  several  placards  which  ran  thus  : — "  W.  Gee,  Solicitor, 
Bishop's  Stortford.     To  be  sold  by  auction,  if  not  previously  disposed  of  by 
private  contract,  a  debt  of  the  above,  amounting  to  £3,197,  due  upon  partner- 
ship and  mortgage    transactions."      Bramwell,  B.,  told  the    jury  that    in  his 
opinion  this  was  no  libel,   "  because  it  was  not  libellous  to  publish  of  another 
that  I13  owed  money,"  and  the  jury  returned  a  verdict  of  Not  guilty. 
R.  v.  Cogldan,  4  F.  &  F.  316. 
It  is  not  defamatory  to  write  and  publish  of  the  plaintiff  words  implying  that 
he  endeavored  to  suppress  dissension  and  discourage  sedition  in  Ireland  ;  for 
though  such  words  might  injure  him  in  the  minds  of  criminals  and  rebels,  they 
would  not  tend  to  lower  him  in  the  estimation  of  right-thinking  men. 
Mawe  v.  Pigott,  Ir.  R.  4  C.  L.  54. 

And  see  Clay  v.  Roberts,  9  Jur.  N.  S.  580  ;  11  W.  R.  649  ;  8  L.  T. 
397. 
So  a  notice   sent  by  a  landlord  to  his   tenants  : — "Messrs.   Henty  &  Sons 
hereby  give  notice   that  they  will  not  receive  in  payment  any  cheques  drawn 
on  any  of  the  branches  of  the  Capital  and  Counties  Bank,"  is  not  defamatory. 
Capital  and  Counties  Bank  v.  Henty  &  Sons  (H.  L.),  7  App.  Cas.  741  ; 
52  L.  J.  Q.  B.  23?. ;  31  W.  R.  157  ;  47  L.  T.  662  ;  47  J.  P.  214. 
The  plaintiff  was  a  certificated  art  master,  and  had  been  master  at  the  Walsall 
Science  and  Art  Institute.     His  engagement  there  ceased  in  June,  1874,  and  he 
then  started,  and  became  master  of,  another  school    which  was  called  "The 
Walsall  Government  School  of  Art,"  and  was  opened  in  August.     In  Septem- 
ber the  following  advertisement  appeared  in  the  Walsall  Observer,  signed  by 
the  defendants  as  chairman,   treasurer,   and  secretary  of  the  Institute  respect- 
ively : — "  Walsall  Science  and  Art  Institute.     The  public  are  informed  that  Mr. 
Mulligan's  connection  with  the  institute  has  ceased,  and  that  he  is  not  author- 
ized to  receive  subscriptions  on  its  behalf."     Held  that  this  was  no  libel ;  and 

(91) 


20  DEFAMATORY    WORDS. 

thai  no  innuendo  could  make  it  so  :  for  the  words  were  not  capable  of  a  defam- 
atory meaning. 

Mulligan  v.  Cole  and  others,  L.  R.  10  Q.  B.  549;  44  L.  J.  Q.  B.153; 
33  L.  T.  12. 

[  *  25  J  If  the  words  are  not  reasonably  susceptible  of  any 
defamatory  meaning,  the  judge  at  the  trial  will  stop  the  ease.  But 
if  the  words  are  reasonably  susceptible  of  t  wo  constructions,  the 
one  an  innocent,  the  other  a  libellous  construction,  then  it  is  a  question 
for  the  jury  which  const  ruction  is  the  proper  one  (Jienner  and  another 
v.  A' Beckett,  L.  R.  7  Q.  B.  11  ;  41  L.  J.  Q.  B.  14  ;  20  \Y.  R.  181  ;  25 
L,  T.  4(34)  ;  and  if  the  judge  at  the  trial  nonsuits,  the  Court  will 
order  a  new  trial.  (  Hart  and  another  v.  Wall,  2  C.  P.  D.  146  ;  46 
L.  J.  C.  P.  227  ;  25  W.  R.  373.) 

The  jury  should  always  read  the  alleged  libel  through  before 
deciding  that  its  effect  is  injurious.  A  word  at  the  end  may  alter 
the  whole  meaning.  (  See  Hunt  v.  Algar,  6  C.  &  P.  245,  post,  p.  99.) 
So  if  in  one  part  appears  something  to  the  plaintiff's  discredit,  in 
another  something  to  his  credit,  "  the  bane  "  and  the  "  antidote  " 
should  be  taken  together.  The  jury  should  not  dwrell  on  isolated 
passages,  but  judge  of  the  publication  as  a  whole.  (Per  Lord 
Ellenborough,  C.J.,  in  R.  v.  Lambert  and  Perry,  2  Camp.  398  ;  31 
How.  St.  Tr.  340  ;  per  Lord  Kenyon,  C.J. ,  in  R.  v.  Reeves,  Peake, 
Add.  Cas.  84  ;  per  Fitzgerald,  J.,  in  R.  v.  Sullivan,  11  Cox,  C.  C. 
58.) 

Illustration. 

The  report  of  a  trial  for  libel  contained  some  strong  observations  against  the 
plaintiff,  which  were  indeed  a  necessary  part  of  the  report,  as  the  defendant  had 
justified.  At  the  end  it  was  stated  that  the  jury  found  a  verdict  for  the  plaintiff 
for  £30.  Held,  that  the  publication,  taken  as  a  whole,  was  not  injurious  to  the 
plaintiff. 

Chalmers  v.  Payne,  2  C.  M.  &  R.  158  ;  5  Tyrw.  766  ;  1  Gale,  69. 

It  is  libellous  to  impute  to  any  one  holding  an  office  that  he  has 
been  guilty  of  improper  conduct  in  that  office,  or  has  been  actuated 
by  wicked,  corrupt,  or  selfish  motives,  or  is  incompetent  for  the 
post.  So  it  is  libellous  to  impute  to  a  member  of  any  of  the  learned 
professions  that  he  does  not  possess  the  technical  knowledge 
necessary  for  the  proper  practice  of  such  profession,  or  that  he  has 
been  guilty  of  professional  misconduct.  And  it  is  not  necessary 
[  *  26  J  (as  it  is  in  cases  of  slander,  post,  p.  66)  that  the  person 
libelled  should  at  the  time  still  hold  that  office  or  exercise  that  pro- 
fession :  it  is  actionable  to  impute  past  misconduct  when  in  office. 
(Parmiter  v.  Coupland,  CM.  &  W.  108  ;  Boy  dell  v.  Jones,  4  M.  & 
W.  446  ;  Warman  v.  JBne,  1  Jur.  820  ;  Goodburne  v.  Bowman,  9 
Bing.  532.) 

In  cases  of  slander  there  is  a  curious  distinction  drawn  between 
offices  of  profit  merely  and  offices  of  honour,  such  as  that  of  justice 
of  the  peace  ;  and  it  has  been  held  that  merely  to  impute  incom- 
petency or  want  of  ability  (  as  distinct  from  a  want  of  integrity  or 
impartiality)  to  a  justice  of  the  peace  is  not  actionable,  sec  p.  71. 
There  is  no  authority,  however,  for  supposing  that  an  action  of 
libel  would  not  lie,  if  such  words  were  printed  and  published. 

(92) 


LIBELS    ON    PROFESSIONAL    MEN.  21 


Illustrations. 


It  is  libellous  to  write  and  publish  of  a  Protestant  archbishop  that  he  attempted 
to  convert  a  Catholic  priest  by  offers  of  money  and  of  preferment  in  the  Church 
of  England  and  Ireland. 

Archhi.sliip  of  Tumi  v.  Robeson  and  another ,  5  Bing,  17;  2  M.  &  P.  .32. 
It  is  libellous  to  write  and  publish  of  an  ex-mayor  and  a  justice  of  the  peace 
that  during  his  mayoralty  he  was  guilty  of  partiality  and  corruption,  and  dis- 
played ignorance  of  his  duties  ;  and  this  notwithstanding  the  public  nature  of 
the  offices  he  held. 

Parmiter  v.  Coupland,  6  M.  &  W.  105 ;  9  L.  J.  Ex.  202  ;  4  Jur.  701. 
Goodburne  v.  Bowman.  9  Bing.  532. 
It  is  libellous  to  write  and  publish  of  a  clergyman  that  he  came  to  the  per- 
formance of  divine  service  in  a  towering  passion,  and  that  his  conduct  is  calcu- 
lated to  make  infidels  of  his  congregation. 

Walker  v.  Brogden,  19  C.  B.  K  S.  65  ;  11  Jur.  K  S.  671  ;  13  W.  R. 

809  ;  12  L.  T,  495. 
Gathercole  v.  Mall,  15  M.  &  W.  319  :  15  L.  J.  Ex.  179  ;  10  Jur.  337. 
But  see  Kelly  v.  Tinting,  L.  R.  I.  Q.  B.  (599  ;  35  L.  J.  Q.   B.  231  ; 
12  Jur.  N.  S.  940  ;  14  W.  R,  51  ;  13  L.  T.  255. 
It  is  libellous  to  write  and  publish  of  a  dissenting  minister  :  —  '' A  serious 
misunderstanding  has  recently  taken  place  amongst  the  Independent  Dissenters 
of  Great  Marlow  and  their  pastor,  in  consequence  of  some  personal  invectives 
publicly  thrown  from  the  pulpit  by  the  latter  against  a  young  lady  of  dis- 
tinguished merit  and  spotless  reputation.     We  understand,   however,   that  the 
matter  is  to  be  taken  up  seriously. — Bucks  Chronicle." 
Edwards  v.  Bell  and  others,  1  Bing.  403. 
As  to  a  Roman  Catholic  priest,  see 

Heame  v.  Stoicell,  12  A.  &  E.  719  ;  4  P.  &  D.  696  ;  6  Jur.  458.  _ 
The  trustees  of  a  charity  can  sue  jointly  for  a  libellous  letter  published  in  a 
newspaper  imputing  to  them  improper  management  of  the  charity  funds. 
Booth  v.  Briscoe  (C.  A.),  2  Q.  B.  D.  496  ;  25  W.  R.  838. 
[*27]  It  is  libellous  to  charge  an  overseer  of  a  parish  with  "  oppressive  con- 
duct" towards  the  paupers. 

Woodard  v.  Bowsing,  2  M.  &  Ry.  74. 
A  placard  stating  of  a  certain  overseer  that  when  out  of  office  he  advocated 
low  rates,  when  in  office  he  advocated  high  rates,  and  that  the  defendant  would 
not  trust  him  with  £5  of  his  property,  is  a  libel. 
Cheese  v.  Scales,  10  M.  &  W.  488. 
It  is  libellous  to  accuse  a  vestry  clerk  of  having  in  any  way  misapplied  the 
money  of  the  parish. 

May  v.  Brown,  3  B.  &  C.  113. 
It  is  libellous  to  charge  a  guardian  of  the  poor  with  having  been  during   the 
preceding  year  "  a  great  defaulter  "  in  his  account. 
Warman  v.  Hine,\  Jur.  820. 
It  is  libellous  to  charge  the  clerk  to  the  justices  of  a  borough  with  corruption. 

Blagg  v.  Start,  10  Q.  B.  899  ;"l6  L.  J.  Q.  B.  39  ;  11  Jur.  101. 
It  is  libellous  to  impute  habitual  drunkenness  and  neglect  of  his  duties  to  a 
certificated  master  mariner. 

Coxhead  v.  Richards,  2  C.  B.  569 ;  15  L.  J.  C.  P.  278  ;  10  Jur.  984. 

Harwood  v.  Green,  3  C.  &  P.  141. 

Irwin  v.  Brandwood,  2  H.  &  C.  960  ;  33  L.  J.  Ex.  257  ;  10  Jur.  K 

S.  370  ;  12  W.  R.  438  ;  9  L.  T.  772. 
Ramon  v.  Falle,  4  App.  Cas.  247 ;  48  L.  J.  P.  C.  45. 

Medical  Men. 

To  advertise  falsely  that  certain  quack  medicines  were  prepared  by  a  physician 
of  eminence  is  a  libel  upon  such  physician. 

Clark  v.  Freeman,  11  Beav.  112  ;  17  L.  J.  Ch.  142  ;  12  Jur.  149. 
It  is  libellous   to   describe   a  medical  practitioner  in   print  as  ' '  the  Harley 
Street  Quack,  Physician  Extraordinary  to  several  ladies  of  distinction." 
Long  v.  Chubb,  5  C.  &  P.  55. 
(93) 


22  DEFAMATORY    WORDS. 

Wells  v.  Webber,  2  F.  &  F.  715. 

Hunt,  r  v.  ,s'/m/y»\  4  F.  &  F.  983  ;  15  L.  T.  421  ;  30  J.  P.  149. 
But  it  is  no  libel  to  write  and  publish  of  a  physician  that  he  has  met  homceo- 
pathists  in  consultation  :  although  it  be  averred  in  the  declaration  that  to  do  so 
would  be  a  breach  of  professional  etiquette. 

Clay  v.  Roberts,  9  Jur.  N.  S.  580  ;  11  W.  R.  649  ;  8  L.  T.  397. 

Barristers. 

To  write  and  publish  falsely  of  a  barrister  that  he  edited  the  third  edition  of 
a  law  book  is  actionable,  if  the  book  is  proved  to  be  full  of  inaccuracies  which 
would  seriously  prejudice  the  plaintiff's  reputation. 

Archbold  v.  Sweet,  1  Moo.  &  Rob.  162  ;  5  C.  &  P.  219. 
To  write  and  publish  of  a  barrister  that  he  is  "  a  quack  lawyer  and  a  mounte- 
bank" and  "an  impostor,"  is  actionable. 

Wakley  v.  Healey,  7  C.  B.  591 ;  18  L.  J.  C.  P.  241. 
Sir  W.  Garrow's  Case,  3  Chit.  Crim.  L.  884. 
[*28]     It  is  libellous  to  compare  the  conduct  of  an  attorney  in  a  particular 
case  to  that  of  the  celebrated  firm  of  Quirk,  Gammon  &  Snap  in  "  Ten  Thousand 

Woodgate  v.  Ridout,  4  F.  &  F.  202.  • 
A  correct  report   in  the    Observer  of   certain  legal  proceedings   was  headed 
"  Shameful  conduct  of  an  attorney."     Held,  that  the  heading  was  a  libel,  even 
though  all  that  followed  was  protected. 

Clement  v.   Lewis,  3  Br.  &  Bing.  297  ;  3  B.  &  Aid.  702  ;  7  Moore, 
200. 
An  information  was  granted  for  these  words  written  to  the  mayor  of  Rich- 
mond :_"  I  ain  sure  you  will  not  be  persuaded  from  doing  justice  by  any  little 
arts  of  your  town  clerk,  whose  consummate  malice  and  wickedness  against  me 
and  my  family  will  make  him  do  anything,  be  it  ever  so  vile." 
R.  v.  Waite,  1  Wils  22. 
Cory  v.  Bond,  2  F.  &  F.  241. 
Words  complained  of  : — "  If  you  will  be  misled  by  an  attorney,  who  only 
considers  his  own  interest,  you  will  have  to  repent  it :  you  may  think,  when  you 
have  once  ordered  your  attorney  to  write  to  Mr.  Giles,  he  [would  not  do  any 
more  without  your  further  orders,  but  if  you  once  set  him  about  it,  he  will  go 
to  any  length  without  further  orders."     Held,  a  libel  on  the  attorney  who  had 
been  employed  to  write  to  Mr.  Giles. 

Godson  v.  Home,!  Br.  &  Bing.  7  ;  3  Moore,  223. 
The  libel  complained  of  was  headed— "  How  Lawyer  B.  treats  his  clients," 
followed  by  a  report  of  a  particular  case  in  which  one  client  of  Lawyer  B.'shad 
been  badly  treated.  That  particular  case  was  proved  to  be  correctly  reported, 
but  this  was  held  insufficient  to  justify  the  heading,  which  implied  that  Lawyer 
B.  generally  treated  his  clients  badly. 

Bishop  v.  Latimer,  4  L.  T,  775. 
Libel  complained  of,  that  the  plaintiff,  a  proctor,  had  three  times  been  sus- 
pended from  practice  for  extortion.     Proof  that  he  had  once  been  so  suspended 
was  held  insufficient. 

Clarkson  v.  Lawson,  6  Bing.  266,  587  ;  3  M.  &  P.  605  ;  4  M.  &  P. 

356. 
Blake  v.  Stevens  and  others,  4  F.  &  F.  232  ;  11  L.  T.  543. 
It  is  libellous  to  impute  to  a  solicitor  "  disgraceful   conduct"  in  having  at  an 
election  disclosed  confidential  communications  made  to  him  professionally. 
Moore  v.  Terrell  and  others,  4  B.  &  Ad.  870  ;  1  N.  &  M.  559. 
But  it  is  not  a  libel  to  say  of  a  solicitor  that  he  was  admitted  in  1879,  when  he 
was  admitted  in  1869. 

Raven  v.  Stevens  &  Sons,  3  Times  L.  R.  67. 

Journalists. 
It  is  a  libellous  to  impute  to  the  editor  and  proprietor  of  a  newspaper  that  in 
advocating  the  sacred  cause  of  the  dissemination   of  Christianity  among  the 
Chinese  he  was  an  impostor,  anxious  only  to  put  money  into  his  own  pocket  by 

(94) 


LIBELS    OX    TRADERS.  23 

extending  the  circulation  of  his  paper  ;  and  that  lie  had  published  a  fictitious 
subscription  list  with  a  view  to  induce  people  to  contribute. 

Campbell  v.  Spottiswoode,  3  B.  &  S.  769  ;  32  L.  J.  Q.  B.  185  ;  9  Jur. 
N.  S.  1069  ;  11  W.  R.  569;  8  L.  T.  201. 
It  is  libellous  to  call  the  editor  of  a  newspaper  "  a  libellous  journalist." 

WaMey  v.  Cooke  &  Healey,  4  Exch.  511  ;  19  L.  J.  Ex.  91. 
[  *29  ]    It  is  libellous  to  write  and  publish  that  a  newspaper  has  a  separate  page 
devoted  to  the  advertisements  of  usurers  and  quack  doctors,  and  that  the  editor 
takes  respectable  advertisements  at  a  cheaper  rate  if  the  advertisers  will  consent 
to  their  appearing  in  that  page. 

Russell  and  another  v.  Webster,  23  W.  R.  69. 
It  is  not  libellous  for  one  newspaper  to  call  another  ''  the  most  vulgar,  igno- 
rant and  scurrilous  journal  ever  published  in  Great  Brittain  ;i"  but  it  is  libellous 
to  add,  "  it  is  the  lowest  now  in  circulation  ;  and  we  submit  the  fact  to  the  con 
sideration  of  advertisers  ;  "  for  that  affects  the  sale  of  the  paper  and  the  profits 
to  be  made  by  advertising. — (Lord  Kenyon,  C.  J.) 
Jleriot  v.  Stuart,  1  Esp.  437. 

Any  written  words  are  libellous  which  impeach  the  credit  of  any 
merchant  or  trader  by  imputing  to  him  bankruptcy,  insolvency,  or 
even  embarrassment,  either  past,  present,  or  future,  or  which  impute 
to  him  fraud  or  dishonesty  or  any  mean  and  dishonourable  trickery 
in  the  conduct  of  his  business,  or  which  in  any  other  manner  are 
prejudicial  to  him  in  the  way  of  his  employment  or  trade. 

"  The  law  has  always  been  very  tender  of  the  reputation  of 
tradesmen,  and  therefore  words  spoken  of  them  in  the  way  of  their 
trade  will  bear  an  action  that  will  not  be  actionable  in  the  case  of 
another  person,  and  if  bare  words  are  so,  it  will  be  stronger  in  the 
case  of  a  libel  in  the  public  newspaper,  which  is  so  diffusive."  {Per 
curiam  in  Ilarmany.Delany,  2  Str.  898;  1  Barnard,  289;  Fitz.  121.) 

Illustrations. 
The  printers  of  a  newspaper,  by  a  mistake  in  setting  up  in  type  the  announce- 
ments from  the  London  Gazette,  placed  the  name  of  the  plaintiff's  firm  under 
the  heading  "  First  Meeting  under  the  Bankruptcy  Act"  instead  of  under 
"  Dissolutions  of  Partnership. "  An  ample  apology  was  inserted  in  the  next 
issue  :  no  damage  was  proved  to  have  followed  to  the  plaintiff:  and  there  was 
no  suggestion  of  any  malice.  In  an  action  for  libel  against  the  proprietors  of 
the  paper,  the  jury  awarded  the  plaintiff  £50  damages.  Held  that  the  publica- 
tion was  libellous,  and  that  the  damages  awarded  were  not  excessive. 

Shepheard  v.  Whitaker,  L.  R.  10  C.  P.  502  ;  32  L.  T.  402. 
[N.  B. — The  chief  clerk  thought  £10  sufficient  in  a  very  similar  case,  Stubbs 
v.  Marsh,  15  L.  T.  312.] 

It  is  libellous  to  advertise  that  a  certain  optician  is  "  a  licensed  hawker"  and 
"  a  quack  in  spectacle  secrets." 

Keysor  and  another  v.  Newcomb,  1  F.  &  F.  559. 
[*  30]  It  is  a  libel  to  write  and  publish  of  a  licensed  victualler  that  his  licence 
has  been  refused  ;    as   it  suggests   that  he  had  committed  some  breach  of  the 
licensing  laws. 

Bignell  v.  Buzzard,  3  H.  &  N.  217  ;  27  L.  J.  Ex.  355. 
It  is  libellous  to  write  and  publish  of  the  plaintiff  that    he  regularly  or  pur- 
posely supplied  bad  and  unwholesome  water  to  ships,  whereby  the   passengers 
were  made  ill. 

Solomon  v.  Laicson,  8  Q.  B.  823  ;  15  L.  J.  Q.  B.  253  ;  10  Jur.  796. 
Barnard  v.  Salter,  W.  N.  1872,  p.  140. 
But  for  one  tradesman  merely  to  puff  up  his  own  goods,  and  decry  those  of 
his  rival,  is  no  libel  ;  unless  fraud  or  dishonesty  be  imputed. 

Evans  v.  Harlow,  5  Q.  B.  624  ;  13  L.  J.  Q.  B.  120  ;  8  Jur.  571  ;  D. 
&  M.  507. 

(95) 


24  DEFAMATORY    WORDS. 

II,  riot  v.  Stuart,  1  Esp.  437,  ante,  p.  29. 
Partners  may  sue  jointly  for  a  libel  defamatory  of  the  partnership. 
he  Fanu  v.  Malcolmson,  1  H.  L.  C.  037  ;  8  lr.  L.  R.  418. 
Hawthorn  v.  Laioson,  3  C.  &  P.  196. 

Ward  v.  SfeM'ft,  0  Bing.  741)  ;  4  C.  &  P.  302  ;  4  M.  &  P.  595. 
So  a  company  or  corporation  can  sue  even  one  of  their  own  members  for  a 
libel  relating  to  their  management  of  their  business. 

Williams  v.  Beaumont,  10  Bing.  200  ;  3  Moore  &  Sc.  705. 
Metropolitan  Omnibus  Go.  v.  Hawkins.  4  H.    &  N.  87  ;  28  L.   J. 
Ex.  201  :  5  Jur.  N.  S.  226;  7  W.  R.  265  ;  32  L.  T.  ( Old  S.  )  281. 
A  married  woman  trading  under  her  own  name  may  sue  as  a  trader,  without 
joining  her  husband,  for  a  libel  on  her  in  the  way  of  her  trade. 

Per  Brett,  J.,  in  Summers  v.  City  Bank,  L.  R.  9  C.  P.  5S3  ;  43  L.J. 

C.  P.  201. 
And  now  see  45  &  43  Vict,  c.  75,  s.  1,  post,  pp.  395,  390. 

Sometimes  also  an  attack  upon  a  thing  may  be  defamatory  of 
the  owner  of  that  thing,  or  of  others  immediately  connected  with 
it.  But  this  is  only  so  where  an  attack  upon  the  thing  is  also  an 
indirect  attack  upon  the  individual.  If  the  words  do  not  touch  the 
personal  character  or  professional  conduct  of  the  individual,  they 
are  not  defamatory  of  him,  and  no  action  lies  (unless  the  words 
fall  within  the  rules  relating  to  Slander  of  Title;  see  post,  c.  V.). 
But  to  impute  that  the  goods  which  the  plaintiff  sells  or  manufact- 
ures are  adulterated  to  Ids  knowledge  is  a  distinct  charge  against 
the  plaintiff  of  fraud  and  dishonesty  in  his  trade. 

Illustrations. 

A  declaration  alleged  that  the  plaintiffs  were  manufacturers  of  bags,  and  had 
manufactured  a  bag  which  they  called  the  "Bag  of  Bags,"  and  that  the 
[  *31  ]  defendant  printed  and  published,  concerning  the  plaintiffs  in  the  way  of 
their  business,  the  words  following  :— "■  As  we  have  not  seen  the  Bag  of  Bags, 
we  cannot  say  that  it  is  useful,  or  that  it  is  portable,  or  that  it  is  elegant.  All 
these  it  may  be,  but  the  only  point  we  can  deal  with  is  the  title,  which  we  think 
very  silly,  very  slangy,  and  very  vulgar  :  and  which  has  been  forced  upon  the 
notice  of  the  public  ad  nauseam."  On  demurrer,  Lush,  J.,  held  that  tin- 
words  could  not  be  deemed  libellous,  either  upon  the  plaintiffs  or  upon  their 
mode  of  conducting  their  business.  But  Mellor  and  Hannem,  JJ.,  thought  that 
it  was  a  question  for  the  jury  whether  the  words  went  beyond  the  limits  of  fair 
criticism,  and  whether  or  not  they  were  intended  to  disparage  the  plaintiffs  in 
the  conduct  of  their  business. 

Jenner  and  another    v.    A7 Beckett,  L.  R.  7  Q.  B.    11  ;  41  L.  J.  Q. 
B.  14  ;  20  W.  R.  181  ;  25  L.  T.  464. 

The  defendant  published  an  advertisement  in  these  words  :— "  Whereas,  there, 
was  an  account  in  the  Craftsman  of  John  Harman,  gunsmith,  making  guns  of 
two  feet  six  inches  to  exceed  any  made  by  others  of  a  foot  longer  (with  whom  it 
is  supposed  he  is  in  fee),  this  is  to  advise  all  gentlemen  to  be  cautious,  the  sa  id 
gunsmith  not  daring  to  engage  with  any  artist  in  town,  nor  ever  did  make  such 
an  experiment  (except  out  of  a  leather 'gun),  as  any  gentleman  may  be  satisfied 
of  at  the  Cross  Guns  in  Longacre."  Held  a  libel  on  the  plaintiff  in  the  way  of 
his  trade.     Verdict  for  the  plaintiff      Damages  £50. 

Harman  v.  Belaney,  2  Stra.  898  ;  1  Barnard.  289,  438  ;  Fitz.  121. 

Adeclaration  alleged  that  the  plaintiff  carried  on  the  trade  of  an  engineer, 
and  sold  in  the  way  of  his  trade  goods  called  "self-acting  tallow  syphons  or 
lubricators."  and  that  the  defendant  published  of  the  plaintiff  in  his  said  trade 
and  as  such  inventor,  as  follows  :— "  This  is  to  caution  parties  employing  steam 
power  from  a  person,  offering  what  he  calls  self-acting  tallow  syphons  or  lubri- 
cators, stating  that  he  is  the  sole  inventor,  manufacturer  and  patentee,  thereby 
monopolizing  high  prices  at  the  expense  of  the  public.     R.   Harlow  (the  de- 

■      (96) 


LIBELS    ON    THINGS.  25 

fendant)  takes  this  opportunity  of  sajing  that  such  a  patent  does  not  exist,  and 
that  he  has  to  offer  an  improved  lubricator,  which  dispenses  with  the  necessity 
of  using  more  than  one  to  a  steam  engine,  thereby  constituting  a  saving  of  50 
per  cent,  over  every  other  kind  yet  offered  to  the  public.  Those  who  have 
already  adopted  the  lubricators  against  which  R.  II.  would  caution,  will  find 
that  the  tallow  is  wasted  instead  of  being  effectually  employed  as  professed." 
Held  no  libel  on  the  plaintiff,  either  generally  or  in  the  way  of  his  trade,  but 
only  a  libel  on  the  lubricators,  and  therefore  not  actionable  without  proof  of 
special  damage. 

Evans  v.  Harlow,  5  Q.  B.  624  ;  13  L.  J.  Q.  B.  120  ;  8  Jur.  571  ;  D. 
&  M.  507. 
So  where  one  tradesman  merely  asserts  that  his  own  goods  are  superior  to 
those  of  some  other  tradesman,  no  action  lies  unless   the  words   be   published 
falsely  and  maliciously  and  special  damage  has  ensued. 

Young  andotfu  rs  v.  Macrae,  3  B.  &  S.  204  ;  32  L.  J.  Q.  B.    6  ;  11 

W.  R.  63  ;  9  Jur.  N.  S.  539  ;  7  L   T.  354. 
Western  Counties  Manure  Go.  v.  Lawes  Chemical  Manure  Co.,  L.  R. 
9  Ex.  218  :  43  L.  J.  Ex.  171  ;  23  W.  R.  5. 
A  libel  on  the  management  of  a  newspaper  is  a  libel  on  its  proprietors,  jointly, 
in  the  way  of  their  trade,  and  therefore  actionable  without  special  damage. 
Russell  and  another  v.   Webster,  23  W.  R.  59. 
["32]     To  write  and  publish  that  a  ship  is  unseaworthy  may  be  a  libel  on  its 
owner.     "  It  is  like  saying  of  an  innkeeper  that  his  wine  or  his  tea  is  poisoned." 
Ingram  v.  Lawson,  6  Bing.  N.  C.  212  ;  8  Se.  471,  478  ;  4.  Jur.  151; 
'.)('.  &P.  326. 
To  advertise  falsely  that  certain  quack  medicines  were  prepared  by  an  emi- 
nent physician,  is  a  libel  upon  such  physician. 

Clark  v.  Fnmmn,  11  Beav.  112  ;  17  L.  J.  Ch.  142  ;  12  Jur.  149. 
It  is  libellous  falsely  to  impute  to  a  bookseller  that  he  publishes  immoral  or 
absurd  poems. 

Tabart  v.  Tipper,  1  Camp.  350. 
It  is  libellous  falsely  to  write  and  publish  of  professional  vocalists  that  they 
had  advertised  themselves  to  sing  at  certain  music-halls  songs  which  they  had 
no  right  to  sing  in  public. 

Hart  and  another  v.  Wall,  2  C.  P.  D.  146  ;  46  L.  J.  C.  P.  227  ;  25 

W.  R.  373. 

But  comments,  however  severe,  on  the  advertisements  or  handbills  of  atrades- 

'  man,  will  not  be  libellous,  if  the  jury  find  that  they  are  fair  and  temperate 

comments,  not  wholly  undeserved,  on  a  matter  to  which  the  public  attention 

was  expressly  invited  by  the  plaintiff. 

Paris  v.  Levy,  9  C.  B.  N.  S.  342  ;  30  L.  J.  C.  P.  11  ;  9  W.  R.  71  ;  3 

L.  T.  324;  2  F.  &.  F.  71. 
Morrison  and  another  v.  Ilarmer  and  another,  3  Bing.  N.  C.  759  ; 
4  Scott,  524  ;  3  Hodges,  108. 

Fair   and  bond  fide  comment. 

Every  one  has  a  right  to  comment  on  matters  of  public  interest 
and  general  concern,  provided  he  does  so  fairly  and  with  an  honest 
purpose.  Such  comments  are  not  libellous,  however  severe  in  their 
terms,  unless  they  are  written  intemperately  and  maliciously. 
Every  citizen  has  full  freedom  of  speech  on  such  subjects,  but  he 
must  not  abuse  it. 

This  branch  of  the  law  is  of  but  recent  growth.  Cockburn,  C.  J., 
says  in   Wason  v.    Walter,  L.  R.  4  Q.  B.  93,  94  :— 

"  Our  law  of  libel  has,  in  many  respects,  only  gradually  devel- 
oped itself  into  anything  like  a  satisfactory  and  settled  form.  The 
full  liberty  of  public  writers  to  comment  on  the  conduct  and  mo- 
tives of  public  men  has  only  in  very  recent  times  been  recognised. 
Comments  on  government,  on  ministers  and  officers  of  state,  on 

(97) 


26  DEFAMATORY    WORDS. 

members  of  both  Houses  of  Parliament,  on  judges  and  other  pub- 
lic functionaries,  are  now  made  every  day,  which  half  a  century 
ago  would  have  been  the  subject  of  actions  or  ex,  officio  informa- 
tions, and  would  have  brought  down  fine  and  imprisonment  on 
publishers  and  authors.  Yet  [*33]  who  can  doubt  that  the  public 
are  gainers  by  the  change,  and  that,  though  injustice  may  often  be 
done,  and  though  public,  men  may  often  have  to  smart  under  the 
keen  sense  of  wrong  inflicted  by  hostile  criticism,  the  nation  protits 
by  public  opinion  being  thus  freely  brought  to  bear  on  the  dis- 
charge of  public  duties  ?  " 

It  has  often  been  said  by  learned  judges  that  fair  and  honest 
criticism  in  matters  of  publie  concern  is  "privileged"  See  especially 
Jlenwood  v.  Harrison,  L.  R.  7  C.  P.  606  ;  41  L.  J.  C.  P.  206  ;  20 
W.  R.  1000  ;  20  L.  T.  938.  But  this  does  not  mean  that  such  words 
are  "  privileged  by  reason  of  the  occasion  "  in  the  strict  legal  sense  of 
that  term.  The  defence  really  is,  that  the  words  are  not  defamatory, 
that  criticism  is  no  libel.  This  is  very  clearly  pointed  out  by 
Blackburn,  J.,  in  Campbell  v.  Spottiswoode,  3  B.  &  S.  769  ;  32  L. 
J.  Q.  B.  185  ;  9  Jur.  N.  S.  1069  ;  1 1  W.  R.  569  ;  8  L.  T.  201.  If 
such  criticism  was  privileged  in  the  strict  sense  of  the  word,  it 
would  in  every  case  be  necessary  for  the  plaintiff  to  prove  actual 
malice, 'however  false  and  however  injurious  the  strictures  may  have 
been  ;  while  the  defendant  would  only  have  to  prove  that  he 
honestly  believed  the  charges  himself  in  order  to  escape  all  liability  ; 
and  this  clearly  is  not  the  law.  See  Williams  v.  Spowers  and 
others,  Australian  Law  Times,  May  13th,  1882,  p.  113  ;  and  3 
Times  L.  R.  432. 

Illustration. 

Condemnation  of  the  foreign  policy  of  the  Government,  however  sweeping,  is 
no  libel. 

Animadversions,  however  severe,  on  the  use  made  by  the  vestry  of  the  money 
of  the  ratepayers,  is  not  libellous,  unless  corruption  or  embezzlement  be  imputed 
to  individual  vestrymen. 

Criticism,  however  trenchant,  on  any  new  poem  or  novel,  or  on  any  picture 
exhibited  in  a  public  gallery,  is  no  libel. 

But  to  maliciously  pry  into  the  private  life  of  any  poet,  novelist,  artist,  or 
statesman,  is  indefensible. 

Criticism. 

True  criticism  differs  from  defamation  in  the  following  particu- 
lars :  — 

1.  Criticism  deals  only  with  such  things  as  invite  public  atten- 
tion, or  call  for  public  comment.  It  does  not  follow  a  public  man 
into  his  private  life,  or  pry  into  his  domestic  concerns. 

2.  Criticism  never  attacks  the  individual,  but  only  his  [*34] 
work.  Such  work  may  be  either  the  policy  of  a  government,  the 
action  of  a  member  of  Parliament,  a  public  entertainment,  a  book 
published,  or  a  picture  exhibited.  In  every  case  the  attack  is  on  a 
man's  acts,  or  on  some  thing,  and  not  upon  the  man  himself.  A 
true  critic  never  indulges  in  personalities,  but  confines  himself  to 
the  merits  of  the  subject-matter. 

(98) 


CRITICISM.  27 

3.  True  criticism  never  imputes  or  insinuates  dishonourable 
motives  (unless  justice  absolutely  requires  it,  and  then  only  on  the 
clearest  proofs). 

4.  The  critic  never  takes  advantage  of  the  occasion  to  gratify 
private  malice,  or  to  attain  any  other  object  beyond  the  fair  discus- 
sion of  matters  of  public  interest,  and  the  judicious  guidance  of  the 
public  taste.  He  will  carefully  examine  the  production  before  him, 
and  then  honestly  and  fearlessly  state  his  true  opinion  of  it. 

Every  one  has  a  right  to  publish  such  fair  and  candid  criticism, 
even  "  although  the  author  may  suffer  loss  from  it.  Such  a  loss 
the  law  does  not  consider  as  an  injury,  because  it  is  a  loss  which 
the  paj'ty  ought  to  sustain.  It  is,  in  short,  the  loss  of  fame  and 
profits  to  which  he  was  never  entitled."  *  *  *  "  Reflection  upon 
personal  character  is  another  thing.  Show  me  an  attack  upon  the 
moral  character  of  the  plaintiff,  or  any  attack  upon  his  character 
unconnected  with  his  authorship,  and  I  should  be  as  ready  as  any 
judge  who  ever  sat  here  to  protect  him.  But  I  cannot  hear  of 
malice  on  account  of  turning  his  works  into  ridicule."  (Per  Lord 
Ellenborough  in  the  celebrated  case  of  Sir  John  Carr  v.  Hood, 
1  Camp.  355,  n.)  So  in  Tabart  v.  Tipper,  1  Camp.  351,  the  same 
learned  Judge  says  :  "  Liberty  of  criticism  must  be  allowed,  or  we 
should  neither  have  purity  of  taste  nor  of  morals.  Fair  discussion 
is  essentially  necessary  to  the  truth  of  history  and  the  advancement 
of  science.  That  publication,  therefore,  I  shall  never  consider  as  a 
libel,  which  has  for  its  object,  not  to  injure  the  reputation  of  any 
individual,  but  to  correct  misrepresentations  of  fact,  to  refute 
sophistical  reasoning,  to  expose  a  vicious  taste  in  literature,  or  to 
censure  what  is  hostile  to  morality."  "  A  critic  must  confine  him- 
self to  criticism,  and  not  make  it  the  veil  for  personal  censure, 
nor  allow  himself  to  run  into  reckless  and  unfair  attacks  merely 
from  the  love  of  exercising  his  power  of  [*35]  denunciation." 
(Per  Huddleston,  B.,  in  Whistler  v.  Ruskin,  Times  f  or  Nov.  27th, 
1878). 

The  right  to  comment  upon  the  public  acts  of  public  men  is  the 
right  of  every  citizen,  and  is  not  the  peculiar  privilege  of  the  press. 
Kane  v.  Mulvany,  Ir.  R.  2  C.  L.  402.)  But  newspaper  writers, 
though  in  strict  law  they  stand  in  no  better  position  than  any  other 
person,  are  generally  allowed  greater  latitude  by  juries.  For  it  is 
in  some  measure  the  duty  of  the  press  to  watch  narrowly  the  con- 
duct of  all  government  officials,  and  the  working  of  all  public  insti- 
tutions, to  comment  freely  on  all  matters  of  general  concern  to  the 
nation,  and  to  fearlessly  expose  abuses. 

Comment  and  criticism  on  matters  of  public  interest  stand  on  a 
different  footing  from  reports  of  judicial  or  Parliamentary  proceed- 
ings. Such  reports  are  privileged,  so  long  as  they  are  fair  and 
accurate  reports  and  nothing  more.  But  so  soon  as  there  is  any 
attempt  at  comment,  the  privilege  is  lost.  In  short,  report  and 
comment  are  two  distinct  and  separate  things.  A  report  is  the 
mechanical  reproduction,    more  or  less   condensed  or  abridged,  of 

(99) 


28  DEFAMATORY    WORDS. 

what  actually  look  place  ;  comment  is  the  judgment  passed  on  the 
circumstances  reported,  by  one  who  has  applied  his  mind  to  them. 
Fair  reports   are  privileged,  while  fair  comments,  if  on  matters  of 

public  interest,  arc  no  libels  at  all. 

Comment  on  well-known  or  admitted  facts  is  a  wry  different 
thing  from  the  assertion  of  unsubstantiated  facts  for  comment. 
"  That  a  fair  and  bond  fide  comment  on  a  matter  of  public  interest 
is  an  excuse  of  what  would  otherwise  be  a  defamatory  publication 
is  admitted.  The  very  statement,  however,  of  this  rule  assumes  tlie 
matters  of  fact  commented  upon  to  be  somehow  or  other  ascer- 
tained. It  does  not  mean  that,  a  man  may  invent  facts,  and  com- 
ment on  the  facts  so  invented  in  what  would  be  a  fair  and  bond  fide 
manner  on  the  supposition  that  the  facts  Avere  true.  ...  If  the 
facts  as  a  comment  upon  which  the  publication  is  [*  36]  sought  to 
be  excused  do  not  exist,  the  foundation  of  the  plea  fails."  {Per  cur.  in 
Lefroy  v.  Burnsidel^o.  2),  4  L.  R.  Ir.  at  pp.  565,  566.)  "  There  is 
no  doubt  that  the  public  acts  of  a  public  man  may  lawfully  be  made 
the  subject  of  fair  comment  or  criticism  not  only  by  the  press,  but 
by  all  members  of  the  public.  But  the  distinction  cannot  be  too 
clearly  borne  in  mind  between  comment  or  criticism  and  allega- 
tions of  fact,  such  as  that  disgraceful  acts  have  been  committed,  or 
discreditable  language  used.  It  is  one  thing  to  comment  upon  or 
criticise;  even  with  severity,  the  acknowledged  or  proved  acts  of  a 
public  man,  and  quite  another  to  assert  that  he  has  been  guilty  of 
particular  acts  of  misconduct."  {Per  cur.  in  Davis  &  Sons  v.  Shep- 
stone,  11  App.  C'as.  at  p.  190  ;  55  L.  J.  P.  C.  51  ;  55  L.  T.  at  p.  2  ;  34 
W.  R.  122.)  To  state  facts  which  are  libellous  is  not  comment  or 
criticism  on  anything.  (Per  Field,  J.,  in  P.  v.  Flowers,  44  J.  P. 
377.)  The  facts  which  give  rise  to  the  comments  must  be  proved 
substantially  as  alleged. 

Slight  unintentional  errors,  however,  will  be  excused.  If  a  writer 
in  the  course  of  temperate  and  legitimate  criticism  falls  into  error 
as  to  some  detail,  or  draws  an  incorrect  inference  from  the  facts 
before  him,  and  thus  goes  beyond  the  limits  of  strict  truth,  such 
inaccuracies  will  not  cause  judgment  to  go  against  him,  if  the  jury 
are  satisfied,  after  reading  the  whole  publication,  that  it  was  written 
honestlv,  fairly,  and  with  regard  to  what  truth  and  justice  require. 
"It  is  not  to  be  expected  that  a  public  journalist  will  always  be 
infallible."     (Per  Coekburn,  C.  J.,  4  F.  &  F.  217.) 

Illustrations. 

A  newspaper  mav  comment  upon  the  hearing  of  a  charge  of  felony  and  the 
evidences  produced"  thereat,  and  discuss  the  conduct  of  the  magistrates  in  dis- 
missing the  charge  without  hearing  the  whole  of  the  evidence  ;  but  it  may  not 
proceed  to  disclose  "evidence  winch  might  have  been  adduced  "  and  thus  argue 
from  facts  not  in  evidence  before  the  magistrates  that  the  accused  was  really 
guiltv  of  the  felony.  Verdict  for  the  plaintiff.  Damages  £25. 
Eibbins  v.  Lee,  4  F.  &  F.  243  ;  11  L.  T.  .141. 
And  see  Helsham  v.  Blackwood,  11  C.  B.  Ill ;  20  L.  J.  C.  P.  187  ;  15 

Jur.  861. 
R.  v.  'White  and  another,  1  Camp.  3.~9. 
A  writer  in  a  newspaper  may  comment  on  the  fact  that  corrupt  practices 

(100) 


ASSERTIONS    NO    COMMENT.  29 

[*  37]  extensively  prevailed  at  a  parliamentary  election  ;  but  may  not  give  the 
names  of  individuals  as  guilty  of  bribery,  unless  he  can  prove  the  truth  of  the 
charge  to  the  letter. 

Wilson  v.  Reed  and  others,  2  F.  &  F.  149. 

Dickeson  v.  II  ill  inn!  and  anotJier,  L.  R.  9  Ex.  79  ;  43  L.  J.  Ex.  37  ; 
22  W.  R.  372  ;  30  L.  T.  196. 

A  newspaper  reported  that  the  mother  of  a  lady,  who  was  dead  and  buried, 
had  applied  to  the  coroner  on  affidavits  for  an  order  that  the  body  might  be 
exhumed,  and  then  proceeded  to  give  a  long  sensational  narrative  of  shocking 
acts  of  cruelty  to  the  deceased  committed  by  her  husband,  imputing  that  he 
had  caused  her  death.  This  narrative  commenced  with  the  words— "  From 
inquiries  made  by  our  reporter  it  appears  that  the  deceased,"  &c.  As  a  matter 
of  fact  the  reporter  had  made  no  inquiries  ;  he  had  merely  read  the  affidavits, 
and  accepted  the  exparte  statements  contained  in  them  as  truth  :  they  were  in 
fact  wholly  false.  He  was  convicted  and  fined  £50. 
R.  v.  Andrew  Gray,  26  J.  P.  663. 

A  Dublin  newspaper  asserted  that  the  plaintiff,  who  was  the  manager  of  the 
Queen's  Printing  Office  in  Ireland,  had  corruptly  supplied  Freeman's  Journal 
with  official  information  and  surreptitious  copies  of  official  documents.  A 
plea  of  fair  comment,  stating  that  Freeman's  Journal  did  somehow  get  official 
information  earlier  than  other  papers,  and  that  defendant  bona  fide  believed  that 
such  information  could  only  have  been  obtained  from  the  Queen's  Printing 
Office,  was  held  bad  on  demurrer. 

Lefroy  v.  Burnside,  (No.  2),  4  L.  R.  Ir.  557. 

Defendant  wrote  "  A  History  of  New  Zealand,"  and  therein  stated  that  the 
plaintiff,  a  lieutenant  in  the  Kai  Jwi  cavalry,  had  charged  at  some  women  and 
young  children  who  were  harmlessly  hunting  pigs,  "  and  cut  them  down  glee- 
fully and  with  ease  "  ;  that  he  had  dismissed  from  the  service  a  subordinate 
officer  Avho  had  protested  against  this  cruelty,  and  that  he  was  ever  afterwards 
known  among  the  Maoris  by  the  nickname  "  Kohuru  "  (the  murderer).  Defend- 
ant admitted  that  these  facts  did  not  appear  in  the  official  reports,  or  in  any 
other  history  of  New  Zealand  ;  but  he  said  he  had  heard  rumours  to  the  effect, 
and  he  called  a  witness  who  had  made  a  statement  to  the  Governor  of  New  Zea- 
land on  hearsay  evidence,  containing  substantially  the  same  charge,  a  copy  of 
which  statement  the  Governor  had  forwarded  to  the  defendant.  Huddleston, 
B.,  directed  the  jury  that  it  was  no  defence  whatever  that  the  charges  were 
made  in  the  bond  fide  belief  that  they  were  true,  and  without  any  malice 
towards  the  plaintiff.  Verdict  for  the  plaintiff.  Damages  £5,000. 
Bryce  v.  Rusden,  2  Times  L.  R.  435. 
Bn  non  v.  Ridgway,  3  Times  L.  R.  592. 

The  appellants  were  the  owners  of  a  daily  newspaper  called  the  Natal  Wit- 
new,  in  which  they  constantly  attacked  the  official  conduct  of  the  respondent, 
the  British  Resident  Commissioner  in  Zululand,  asserting  that  he  had  himself 
violently  assaulted  a  Zulu  chief,  that  he  had  set  on  his  native  police  to  assault 
and  abuse  others,  &c.  They  vouched  for  the  truth  of  these  stories,  declaring 
that  though  some  doubt  had  been  thrown  on  them,  they  would  prove  to  be  true 
on  investigation.  They  then  proceeded,  on  the  assumption  that  the  charges 
were  true,  to  comment  on  the  respondent's  conduct  in  most  offensive  and  inju- 
rious language.  At  the  trial  in  Natal,  on  September  4th,  1883,  it  was  proved 
that  the  charges  against  the  respondent  were  absolutely  without  foundation  : 
the  [*-38]  appellants  made  no  attempt  to  support  them  by  evidence.  Verdict 
for  the  plaintiff.  Damages  £500.  Motion  for  a  new  trial  refused  by  the 
Supreme  Court  of  Natal.  Held,  on  appeal  to  the  Judicial  Committee  of  the 
Privy  Council  that  the  distinction  must  be  closely  drawn  between  comment  or 
criticism  and  allegations  of  fact ;  that  such  a  publication  was  in  no  way  priv- 
ileged, and  that  the  damages  were  not  excessive. 

Davis  &  Sons  v.  Shepstone,  11   App.  Cas.  187 ;  55  L.  J.  P.  C.  51  ; 

34  W.  R.  722  ;  55  L.  T.  1  ;  50  J.  P.  709. 
Walker  v.  Brogden,  19  C.    B.  N.    S.  65  ;  11   Jur.  N.  S.  671  ;  13  W. 

R.  809  ;  12  L.  T.  495. 
Duplany  v.  Davis,  3  Times  L.  R.  184. 

(101) 


30  DEFAMATORY    WORDS. 

Bona  fides. 

But  all  comments  must  be  fair  and  honest.  Matters  of  public 
interest  must  be  discussed  temperately.  Wicked  and  corrupt 
motives  should  never  be  wantonly  assigned.  And  it  will  be  no 
defence  that  the  writer,  at  the  time  he  wrote,  honestly  believed  in 
the  truth  of  the  charges  he  was  making,  if  such  charges  be  made 
recklessly,  unreasonably,  and  without  any  foundation  in  fact. 
Campbell  v.  Spottiswoode,  3  F.  &  F.  421  ;  8  B.  &  S.  7G9  ;  32  L. 
J.  Q.  B.  185  ;  11  W.  R.  5G9  ;  9  Jur.  N.  S.  1,039  ;  8  L.  T.  201). 
Some  people  are  very  credulous,  especially  in  politics,  and  can 
readily  believe  any  evil  of  their  opponents.  There  must,  therefore, 
be  some  foundation  in  fact  for  the  charges  made  ;  the  writer  must 
bring  to  his  task  some  degree  of  moderation  and  judgment. 

So  long  as  a  writer  confines  himself  to  discussing  the  public  con- 
duct of  public  men,  the  mere  fact  that  motives  have  been  unjustly 
assigned  for  such  conduct  is  not  of  itself  sufficient  to  destroy  this 
defence,  though  of  course  it  will  tell  strongly  in  favour  of  the 
plaintiff.  "A  line  must  be  drawn,"  says  Cockburn,  C.  J.,  in  Camp- 
bell v.  Spottiswoode,  3  B.  &  S.  776,  777  ;  32  L.  J.  Q.  B.  199  ;  8  L. 
T.  201,  "between  criticism  upon  public  conduct  and  the  imputation 
of  motives  by  which  that  conduct  may  be  supposed  to  be  actuated; 
one  man' has  no  right  to  impute  to  another,  whose  conduct  may  be 
fairly  open  to  ridicule  or  disapprobation,  base,  sordid,  and  wicked 
motives,  unless  there  is  so  much  ground  for  the  imputation  that  a 
jury  shall  find,  not  only  that  he  had  an  honest  belief  in  the  truth 
of  his  statements,  but  that  [*39]  his  belief  was  not  without  foun- 
dation .  .  .  ."  "  I  think  the  fair  position  in  which  the  law  may  be 
settled  is  this  :  That  where  the  public  conduct  of  a  public  man  is 
open  to  animadversion,  and  the  writer  who  is  commenting  upon  it 
makes  imputations  on  his  motives,  which  arise  fairly  and  legiti- 
mately out  of  his  conduct,  so  that  a  jury  shall  say  that  the  criti- 
cism was  not  only  honest  but  also  well-founded,  an  action  is  not 
maintainable.  But  it  is  not  because  a  public  writer  fancies  that 
the  conduct  of  a  public  man  is  open  to  the  suspicion  of  dishonesty, 
he  is  therefore  justified  in  assailing  his  character  as  dishonest." 

Illustrations. 

An  article  in  the  Saturday  Review  imputed  to  the  plaintiff,  the  editor  and  part 
proprietor  of  the  British  Ensign,  that  in  advocating  the  propagation  of  Chris- 
tianity among  the  Chinese  his  purpose  was  merely  to  increase  the  circulation  of 
his  own  paper,  and  so  put  money  into  his  own  pocket :  that  he  was  an  impos- 
tor, and  that  he  put  forth  a  list  of  fictitious  subscribers  in  order  to  delude  others 
into  subscribing.  The  jury  found  that  the  writer  honestly  believed  the  impu- 
tations contained  in  the  article  to  be  well-founded,  but  the  Court  held  that  the 
limits  of  fair  criticism  had  been  undoubtedly  exceeded. 

Campbell  v.  Spottiswoode.  3  F.  &  F.  421  ;  32  L.  J.  Q.  B.  185  ;  3B.& 
S.  7G9  ;  9  Jur.  N.  S.  1069  ;  11  W.  R.  5G9  ;  8  L.  T.  201. 

Two  sureties  were  proposed  for  the  Berwick  election  petition  :  neither  of 
whom  had  any  connection  with  the  borough.  Affidavits  were  put  in  to  show 
that  one  of  them  was  an  insufficient  surety,  being  embarrassed  in  his  affairs. 
The  Times  set  out  these  affidavits  and  added  the  remarks  :  "But  why,  it  may 
be  asked,  does  this  cockney  tailor  take  all  this  trouble,  and  subject  himself  to 
all  this  exposure  of  his  difficulties  and  embarrassments  ?   He  has  nothing  to  do 

(102) 


MATTERS    OF    PUBLIC    INTEREST.  31 

with  the  borough  of  Berwick-upon-Tweed  or  its  members.  How  comes  it  then 
that  he  should  take  so  much  interest  in  the  job  ?  There  can  be  but  one  answer 
to  these  very  natural  and  reasonable  queries  :  he  is  hired  for  the  occasion.  The 
affair  in  fact  is  a  foul  job  throughout,  and  it  is  oidy  by  such  aid  that  it  can  pos- 
sibly be  supported."  In  an  action  brought  on  the  whole  article,  the  defendant 
pleaded  that  the  publication  was  a  correct  report  of  certain  legal  proceedings, 
."  together  with  a  fair  and  bond  fide  commentary  thereon."  But  the  jury  thought 
the  comment  was  not  fair  and  gave  the  plaintiff  damages  £100. 

Cooper  v.  Lawson.SA.  &  E.  746  ;  1  P.  &  D.  15  ;  1  W.  W.  &  II.  G01; 
2  Jur.  919. 
The  plaintiff,  who  was  a  Q.  C.  and  a  Member  of  Parliament,  was  appointed 
recorder  of  Newcastle.  The  defendant's  paper,  the  Law  Magazine  and  Review, 
thereupon  discussed  the  desirability  of  giving  such  an  appointment  to  a  member 
of  the  House  of  Commons,  and  declared  that  it  was  a  reward  for  his  having 
steadily  voted  with  his  party.  Cockburn,  C.  J.,  directed  the  jury  that  a  public 
writer  was  fairly  entitled  to  comment  on  the  distribution  of  Government  patron- 
age ;  but  that  he  was  not  entitled  to  assert  that  there  had  been  a  corrupt  promise 
[*40]  or  understanding  that  the  plaintiff  would  be  thus  rewarded,  if  he  always 
voted  according  to  order.     Verdict  for  the  plaintiff  ;»  damages  40s. 

Seymour  v.  Butter  worth,  3  F.  &  F.  372. 
The  plaintiff  was  ex-mayor  of  Winchester.  The  Hampshire  Advertiser 
imputed  to  him  partiality  and  corruption  and  ignorance  of  his  duties  as  mayor 
and  justice  of  the  peace  for  the  borough.  Held,  that  though  some  words  which 
are  clearly  libellous  of  a  private  person  may  not  amount  to  a  libel  when  spoken 
of  a_ person  holding  a  public  capacity,  still  any  imputation  of  unjust  or  corrupt 
motives  is  equally  libellous  in  either  case. 

Parm'iter  v.  Coupland,  6  M.  &  W.  105  ;  9  L.  J.  Ex.  202  ;  4  Jur.  701. 

But  when  an  attack  is  made  on  the  policy  of  her  Majesty's  Government  or  on 

the  public  conduct  of  any  high  officer  of  State,  it  appears  now  that  wicked,  or 

at  least  selfish,  motives  may  be  imputed,  so  long  as  they  are  not  recklessly  and 

maliciously  imputed. 

Per  Martin,  B.,  in  Harle  v.  Catherall,  14  L.  T.  801. 

Per  Cockburn,  C.  J.,  in  Wason  v.  Walter,  L,  R.  4  Q.  B.  93  ;  38  L.  J. 
Q.  B.  34  ;  17  W.  R.  169  ;  19  L.  T.  41(5  ;  8  B.  &  S.  730. 

And  in  Campbell  v.  Spottiswoode,  ante,  p.  33. 
The  defendants,  the  printers  and  publishers  of  the  Manchester  Courier,  pub- 
lished in  their  paper  a  report  of  the  proceedings  at  a  meeting  of  the  board  of 
guardians  for  the  Altrincham  Poor-Law  Union,  at  which  charges  were  made 
against  the  the  medical  officer  of  the  union  workhouse  at  Knutsford,  of  neglect- 
ing to  attend  the  pauper  patients  when  sent  for.  Such  charges  proved  to  be 
utterly  unfounded  ;  they  were  made  in  the  absence  of  the  medical  officer,  with- 
out any  notice  having  been  given  him.  Held,  that  the  matter  was  one  of  public 
interest ;  but  that  the  report  was  not  privileged  by  the  occasion,  although  it, 
was  admitted  to  be  a  correct  account  of  what  passed  at  the  meeting  ;  that  it 
was  obviously  unfair  to  the  plaintiff  that  such  ex  parte  statements  should  be 
published  in  the  local  papers  ;  that  the  editor  should  therefore  have  exercised 
his  discretion  and  excluded  the  report  altogether  ;  and  the  plaintiff  recovered 
40s.  damages  and  costs. 

Purcell  v.  Sowler  (C.  A.),  2  C.  P.    D.   215  ;  46  L.  J.  C.  P.  303  ;  25 
W.  R.  362  ;  36  L.  T.  416. 

What  are  matters  of  public  interest  ? 

The  public  conduct  of  every  public  man  is  a  matter  of  public 
concern  : — 

"  A  clergyman  with  his  flock,  an  admiral  with  his  fleet,  a  general 
with  his  army,  and  a  judge  with  his  jury,  are  all  subjects  of  public 
discussion.  Whoever  fills  a  public  position  renders  himself  open 
thereto.  He  must  accept  an  attack  as  a  necessary,  though  unpleas- 
ant, appendage  to  his  office."  (Per  Bramwell,  B.,  in  Kelly  v.  /Sher- 
lock, L.  R.  1  Q.  B.  G89  ;  35  L.  J.  Q.  B.  209  ;  12  Jur.  N.  S.  937.) 

C103) 


32  DEFAMATORY    WORDS. 

All  political,  legal  and  ecclesiastical  matters  therefore  [*  41  ]  are 
matters  of  public  concern.  So  is  the  conduct  of  every  vestry,  town 
council,  board  of  guardians,  &c.  For,  although  these  may  be  mat- 
ters of  local  interest  principally,  still  this  rule  applies,  so  long  as 
they  are  not  private  matters.  Any  thing  that  is  a  public  concern 
to  the  inhabitants  of  Birmingham  or  Manchester  is  a  matter  of  pub- 
lic interest  within  the  meaning  of  the  rule.  See  the  remarks  of 
Cockburn,  C.  J.,  in  Cox  v.  Feeney,  4  F.  &  F.  13.  And  again  in 
JPurcell  v.  Soioler,  2  C.  P.  D.  218,  the  same  learned  judge  says  : 
"  But  it  seems  to  me  that  whatever  is  matter  of  public  concern 
when  administered  in  one  of  the  government  departments,  is  mat- 
ter of  public  concern  when  administered  by  the  subordinate  author- 
ities of  a  particular  district.  It  is  one  of  the  characteristic  features 
of  the  government  of  this  country  that,  instead  of  being  centralized, 
many  important  branches  of  it  are  committed  to  the  conduct  of  local 
authorities.  Thus,  the  business  of  counties,  and  that  of  cities  and 
boroughs,  is,  to  a  great  extent,  conducted  by  local  and  municipal 
government.  It  is  not,  therefore,  because  the  matter  under  con- 
sideration is  one  which  in  its  immediate  consequences  affects  only 
a  particular  neighborhood  that  it  is  not  a  matter  of  public  concern. 
The  management  of  the  poor  and  the  administration  of  the  poor- 
law  in  each  local  district  are  matters  of  public  interest.  In  this 
management  the  medical  attendance  on  the  poor  is  matter  of  infin- 
ite moment,  and  consequently  the  conduct  of  a  medical  officer  of 
the  district  may  be  of  the  greatest  importance  in  that  particular 
district,  and  so  may  concern  the  public  in  general." 

Matters  of  public  interest  may  be  conveniently  grouped  under 
the  following  heads  : — 

1.  Affairs  of  state  ; 

2.  The  administration  of  justice  ; 

3.  Public  institutions  and  local  authorities  ; 

4.  Ecclesiastical  matters  ; 

5.  Books,  pictures,  and  architecture  ; 

[*42]      G.   Theatres,  concerts,  and  other  public  entertainments  ; 
V.  Other  appeals  to  the  public. 

Lord  Coleridge,  C.  J.,  decided  in  Weldon  v.  Johnson,  Times  for 
May  27th,  1884,  that  it  was  a  question  for  the  judge  and  not  for 
the  jury,  whether  a  particular  topic  was  or  was  not  a  matter  of 
public  interest.  , 

1.  Affairs  of  State. 

The  conduct  of  all  public  servants,  the  policy  of  the  Government, 
our  relations  with  foreign  countries,  all  suggestions  of  reforms  in 
the  existing  laws,  all  bills  before  Parliament,  the  adjustment  and 
collection  of  taxes,  and  all  other  matters  which  touch  the  public 
welfare,  are  clearly  matters  of  public  interest,  which  come  within 
the  preceding  rule.  "  Every  subject  has  a  right  to  comment  on 
those  acts  of  public  men  which  concern  him  as  a  subject  of  the 
realm,  if  he  do  not  make  his  commentary  a  cloak  for  malice  and 
slander."     (Per  Parke,  B.,  in  Parmiter   v.  Coupland,  6  M  &  W. 

(104) 


COMMENTS    ON    STATE    AFFAIRS.  33 

108.)  Those  who  fill  "a  public  position  must  not  be  too  thin- 
skinned  in  reference  to  comments  made  upon  them.  It  would  often 
happen  that  observations  would  be  made  upon  public  men  which 
they  knew  from  the  bottom  of  their  hearts  were  undeserved  and 
unjust  ;  yet  they  must  bear  with  them,  and  submit  to  be  misunder- 
stood for  a  time,  because  all  knew  that  the  criticism  of  the  press 
was  the  best  security  for  the  proper  discharge  of  public  duties." 
(Per  Cockburn,  C.  J.,  in  Seymour  v.  Butterworth,  3  F.  &  F.  37G, 
377  ;  and  see  the  dicta  of  the  judges  in  li.  v.  Sir  R.  Garden,  5 
Q.  B.  D.  1  ;  49  L.  J.  (M.  C.)  1  ;  28  W.  R.  133  ;  41  L.  T.  504.) 

Illustrations. 

The  presentation  of  a  petition  to  Parliament  impugning"  the  character  of  one 
of  her  Majesty's  judges,  and  praying  for  an  inquiry,  and  for  his  removal  from 
office  should  the  charge  prove  true,  is  a  matter  of  high  public  concern,  on 
[*43]  which  all  newspapers  may  comment,  and  in  severe  terms.  So  is  the 
debate  in  the  House  on  the  subject  of  such  petition. 

Wason  v.  Walter,  L,  R.  4  Q.  B.  73  ;  38  L.  J.  Q.  B.  34  ;   17  W.  R. 
169  ;  19  L.    T.  409  ;  8  B.  &  S.  730. 
The  presentation  of  a  petition  to  Parliament  against  quack  doctors  is  matter 
for  public  comment. 

Dunru   v.  Anderson,  3  Bing.  88  ;  Ry.  &  Moo.   287  ;  10  Moore,  407. 
Evidence  given  before  a  Royal  Commission  is  matter  publici  juris,  and  every- 
one has  a  perfect  right  to  criticise  it. 

Per  Wickens.  V.-C,  in  Mulkern  v.  Ward,  L.  R.  13  Eq.  622  ;  41  L.  J. 
Ch.  464  ;  26  L.  T.  831. 
So  is  evidence  taken  before  a  Parliamentary  Committee  on  a  local  gas  bill. 

Hedley  v.  Barlow,  4  F.  &  F.  224. 
A  report  of  the  Board  of  Admiralty  upon  the  plans  of  a  naval  architect,  sub- 
mitted to  the  Lords  of  the   Admiralty  for  their  consideration,  is  a  matter  of 
national  interest. 

Henwood  v.  Harrison,!*.  R.  7C.  P.606;  41  L.  J.  C.  P.  206  ;  20  W.  R. 
1000  ;  26  L.  T.  938. 
The  appointment  of  a  Roman  Catholic  to  be  Calendarer  of  State  Papers  is  a 
matter  of  public  concern. 

Turnbull  v.  Bird,  2  F.  &  F.  508. 
Lefroy  v.  Burnside  (No.  2).  4  L.  R.  Ir.  556. 
All  appointments  by  the   Government  to  any  office  are  matters  of  public 
concern. 

Seymour  v.  Butterworth,  3  F.  &  F.  372. 
A  newspaper  is  entitled  to  comment  on  the  fact  (if  it  be  one)  that   corrupt 
practices  extensively  prevailed  at  a  recent  Parliamentary  election  so  long  as  it 
dues  not  make  charges  against  individuals. 

Wilson  v.  Reed  and  others,  2  F.  &  F.  149. 
A  meeting  assembled  to  hear  a  political  address  by  a  candidate  at  a  Parlia- 
mentary election,  and  the  conduct  thereat  of  all  persons  who  take  any  part  in 
such  meeting,  are  fair  subjects  for  bond  fide  discussion  by  a  writer  in  a  public 
newspaper. 

Davis  v.  Dunmn,  L.  R.  9  C.  P.  396  ;  43  L.  J.  C.  P.  185  ;  22  W.  R, 
575  ;  30  L.  T.  464. 
The  public  career  of  any  member  of  Parliament,  or  of  any  candidate  for  Par- 
liament, is  of  course  a  matter  of  public  interest  in  the  constituency.  But  not 
his  private  life  and  history,  "  However  large  the  privilege  of  electors  may  be," 
said  Lord  Denman,  C.  J.,  "  it  is  extravagant  to  suppose  that  it  can  justify  the 
publication  to  all  the  world  of  facts  injurious  to  a  person  who  happens  to  stand 
in  the  situation  of  a  candidate." 

Duncombe  v.  Daniell,  8  C.  &P.  222  ;  2  Jur..  32  ;  1  W.  W.  &  H.  101. 
I  apprehend,  however,  that  the  electors  are  entitled  to  investigate  and  discuss 
all  matters  in  the  past  private  life  of  a  candidate  which,  if  true,  would  prove 
3  Lm.  &  Slan.  (105) 


34  DEFAMATORY    WORDS. 

him  morally  or  intellectually  unfit  to  represent  them  in  Parliament;  but  not 
to  circulate  unfounded  charges  against  him  even  bond  fide. 
Earwood  v.  Sir  ./.  Astley,  1  B.  &  P.  N.  R.  47. 
Wisdom  v.  Brown,  1  Times,  L.  R.  412. 
Pahkhur8t  v.  Hamilton,  3  Times  L.  R.  500. 
[  *44  ]  In  America  the  law  on  this  point  varies  greatly  in  the  different  Stales. 
In  New  York  no  attack  is  allowed  even  on  the  public  character  of  any  public 
officer;  and  that  the  defendant  honestly  believed  in  the  truth  of  the  charge  is 
no   defence.     No    distinction  is  made  between   a  public   man  and  u   private 
citizen. 

Hamilton  v.  Eno,  81  K  Y.  116. 
Lewis  v.  Few,  5  Johns  1. 
Root  v.  King,  7  Cowen,  613  ;  4  Wend.  113. 
So  in  West  Virginia. 

Sweeney  v.  Baker,  13  West  Virginia  R.  153. 
And  in  Massachusetts. 

Commonwealth  v.  Clap,  4  Mass.  103. 
Curtis  v.  Mussey,  6  Gray  (72  Mass.),  261. 
In  Michigan,  the  Supreme  Court  decided  that  "  the  public  are  interested  in 
knowing  the  character  of  candidates  for  Congress,  and  while  no  one  can  law- 
fully destroy  the  reputation  of  a  candidate  by  falsehood,  yet,  if  an  honest  mis- 
take is  made  in  an  honest  attempt  to  enlighten  the  public,  it  must  reduce  the 
damages  to  a  minimum  if  the  fault  itself  is  not  serious." 

Bailey  v.  Kalamazoo  Publishing  Co.,  40  Mich.  251. 
Scripps  v.  Foster,  39  Mich.  376;  41  Mich.  742. 
In  New  Hampshire,  a  newspaper  may  state  in  good  faith  and  on  reasonable 
grounds  that  airv  public  officer  has  been  guilty  of  official  misconduct. 
Palmer  v.  Concord,  48  N.  H.  211. 
And  in  Iowa  charges  affecting  the  moral  character  of  any  public  man  arc 
protected  if  made  in  good  faith  and  on  reasonable  grounds. 
Mott  v.  Dawson,  46  Iowa,  533. 

2.  Administration  of  Justice. 

The  administration  of  the  law,  the  verdicts  of  juries,  the  conduct 
of  suitors  and  their  witnesses,  are  all  matters  of  lawful  comment  as 
goon  as  the  trial  is  over.  Any  comment  pending  action  is  a  con- 
tempt of  court,  by  whomsoever  made  ;  it  is  especially  so  where  the 
comment  is  supplied  by  one  of  the  litigants  or  his  solicitor  or  coun- 
sel. (Daw  v.  Eky,  L.  R.  7  Eq.  49  ;  38  L.  J.  Ch.  113  ;  17  W.  R. 
245.) 

In  former  days,  where  a  trial  lasted  more  than  one  day,  news- 
papers were  sometimes  forbidden  to  publish  any  report  from  day 
to  day  ;  they  were  ordered  to  reserve  their  whole  report  till  the 
case  was  ended.  But,  unless  such  an  order  be  made,  daily  reports 
of  the  progress  of  the  trial  are  unobjectionable,  if  fair  and  impar- 
tial. (Lewis  v.  Levy,  [*45]  E.  B.  &.  E.  537  ;  27  L.  J.  Q.  B.  282  ; 
4  Jur.  N.  S.  970.)  But  report  is  very  different  from  comment. 
No  observations  on  the  case  are  permitted  during  its  progress,  lest 
the  minds  of  the  jury  (and  indeed  of  the  judge)  should  be  thereby 
biased.      (7£.   v.   &l)or//iert;/,  5  Cox,  C.  C.  348.) 

But  as  soon  as  the  case  is  over,  every  one  has  "  a  right  to  discuss 
fairly  and  bond  fide  the  administration  of  justice  as  evinced  at  this 
trial.  It  is  open  to  him  to  show  that  error  was  committed  on  the 
part  of  the  judge  and  jury  ;  nay,  further,  for  myself  I  will  say  that 
the  judges  invite  discussion  of  their  acts  in  the  administration  of  the 
law,  and  it  is  a  relief  to  them  to  see  error  pointed  out,  if  it  is  commit- 

(106) 


ADMINISTRATION    OF    JUSTICE.  35 

ted  ;  yet,  whilst  they  invite  the  freest  discussion,  it  is  not  open  to  a 
journalist  to  impute  corruption."  (Per  Fitzgerald,  J.,  in  12.  v.  Sul- 
livan, 11  Cox,  C.  C.  57.)  "That  the  administration  of  justice  should 
be  made  a  subject  for  the  exercise  of  public  discussion  is  a  matter 
of  the  most  essential  importance.  But,  on  the  other  hand,  it  be- 
hoves those  who  pass  judgment,  and  call  upon  the  public  to  pass 
judgment,  on  those  who  are  suitors  to,  or  witnesses  in,  courts  of  jus- 
tice, not  to  give  reckless  vent  to  harsh  and  uncharitable  views  of 
the  conduct  of  others  ;  but  to  remember  that  they  are  bound  to  ex- 
ercise a  fair  and  honest  and  an  impartial  judgment  upon  those  whom 
they  hold  up  to  public  obloquy."  (Per  Cockburn,  C.  J.,  in  Wood- 
gate  v.  Hidout,  4  F.  &  F.  22:3,  4.)  "  Writers  in  public  papers  are 
of  great  utility,  and  do  great  benefit  to  the  public  interests  by 
watching  the  proceedings  of  courts  of  justice,  and  fairly  comment- 
ing on  them  if  there  is  any  thing  that  calls  for  observation  ;  but 
they  should  be  careful,  in  discharging  that  function,  that  they  do 
not  wantonly  assail  the  character  of  others,  or  impute  criminality  to 
them,  and  if  they  do  so,  and  do  not  bring  to  the  performance  of  the 
duty  they  discharge  that  due  regard  for  the  interests  of  others 
which  the  assumption  of  so  important  a  censorship  necessarily  re- 
quires, they  must  take  the  consequences."  Per  Cockburn,  C.  J.,  in 
Reg.  v.  Tanfield,  42  J.  P.  at  p.  424.) 

Illustrations. 

[*  46]  It  is  not  a  fair  comment  on  a  criminal  trial  to  suggest  that  the  prisoner, 
though  acquitted,  was  really  guilty. 

Lewis  v.  Walter,  4  B.  &  Aid.  605. 

Risk  Allah  Bey  v.  Whitehurst  and  others,  18  L.  T.  615. 
It  is  not  a  fair  comment  on  any  legal  proceedings  to  insinuate  that  a  particular 
witness  committed  perjury  in  the  course  of  them. 

Roberts  v.  Brown,  10  Bing.  519  ;  4  Moo.  &  S.  407. 
Stiles  v.  Nokes,  S.  C.  Carr  v.  Jones,  7  East,  493  ;  3  Smith,  491. 
Littler  v.  Thompson,  2  Beav.  129. 

Felkin  v.  Herbert,  3:{  L.  J.   Ch.  294  ;  10  Jur.  N.  S.  62  ;    12  W.  R 

241,  332  ;  9  L.  T.  635. 

A  newspaper  may  comment  on  the  evidence  given  by  any  particular  witness 

in  any  inquiry  on  a  matter  of  public  interest  ;    but   may  not  go  the  length  of 

declaring  such  evidence   to  be  "  maliciously  or  recklessly  false."     Verdict  for 

the  plaintiff.     Damages  £250. 

Hedley  v.  Barlow,  4  F.  &  F.  224. 
A  newspaper  may  comment  on   the  conduct  of  magistrates  in  dismissing  a- 
case  without  hearing  the  whole  of  the  evidence,  or  in  committing  the  prisoner 
for  trial  on  insufficient  evidence  ;  but  it  must  not  impute  that  in  so  doing  they 
acted  deliberately  and  consciously  from  political  motives. 
ffibbins  v.  Lee,  4  F.  &,  F.  243  ;  11  L.  T.  541. 
The  details  of  a  long-protracted  squabble  between  a  professional  singer  and  a 
great  composer  do  not  become  matters  of  public  interest,  merely  because  the 
former  ultimately  applies  to  a  police   magistrate  for  a  summons  against  the 
latter. 

Weldon  v.  Johnson,  Times  for  May  27th,  1884. 
The  Morning  Post  published  an  article  on  a  trial  which  had  greatly  excited 
public  attention,  giving  a  highly  coloured  account  of  the  conduct  of  the  attor- 
neys on  one  side,  concluding  with  the  sweeping  condemnation: — "Messrs. 
Quirk,  Gammon,  and  Snap  were  fairly  equalled,  if  not  outdone,"  alluding  to 
the  notorious  firm  of  pettifoggers  in  "Ten  Thousand  a  Year."  This  account 
of  plaintiff's  conduct  was  taken  almost  verbatim  from  the  speech  of  counsel  on 

(107) 


36  DEFAMATORY    WORDS. 

the  other  side,  and  no  allusion  was  made  to  the  evidence  subsequently  pro- 
duced to  rebut  his  statements.     Verdict  for  the  plaintiff.     Damages  £1,0U0. 
Woodgate  v.  liidout,  4  F.  &  F.  202. 

3.  Public  Institutions  and  Local  Authorities. 

The  working  of  all  public  institutions,  such  as  colleges,  hospitals, 
asylums,  homes,  is  a  matter  of  public  interest,  especially  where 
sucli  institutions  appeal  to  the  public  for  subscriptions,  or  are  sup- 
ported by  the  rates,  or  are,  like  our  Universities,  national  property. 
The  management  of  local  affairs  by  the  various  local  authorities, 
e.  g.,  town-councils,  schoolboards,  vestries,  boards  of  guardians, 
boards  of  health,  &c,  is  a  matter  of  public,  though  it  may  not  be  of 
universal,  concern. 

Illustrations. 

"  The  management  of  the  poor  and  the  administration  of  the  poor  law  in  each 
local  district  are  matters  of  public  interest." 

Per  Cockburn,  C.  J.,  in  Purccll  v.  Sowler,  2C.  P.  D.  218  ;  4G  L.  J. 
C.  P.  308  ;  25  W.  R.  362  ;  30  L.  T.  416. 
The  official  conduct  of  a  way-warden  may  be  freely  criticised  in  the  local 
press. 

Ilarle  v.  Catheratt,  14  L.  T.  801. 
The  manner  in  which  a  coroner's  officer  treats  the  poor  relatives  of  the  deceased 
when  serving  them  with  a  summons  for  an  inquest,  and  the  behaviour  of  such 
officer  jn  Court  are  matters  of  public  concern. 

Per  Bowen,  J.,  in  Sheppard  v.  Lloyd  Daily  Chronicle  for  March  11, 
1882. 
The  Charity  Commissioners  sent  an  inspector  to  inquire  into  the  working  of  a 
medical  college  at  Birmingham.    He  made  a  report  containing  passages  defama- 
tory of  the  plaintiff;  one  of  the  professors.     The  mismanagement  of  the  college 
continued  and  increased.     The  warden  at  last  filed  a  bill  to  administer  the' funds 
in  Chancery.     Thereupon  the  defendant,  the  proprietor  of  a  local  paper,  pro- 
cured an  official  copy  of  the  report  of  the  inspector,  and  published  it  verbatim  in 
his  paper.     This  was  nearly  three  years  after  the  report  had  been  written.    The 
plaintiff  contended  that  this  was  a  wanton  revival  of  stale  matter  which  could 
not  be  required  for  public  information  ;  but  Cockburn,  C.  J.,  left  it  to  the  jury 
to   say  whether  public  interest  in  the  matter    had  not  rather  increased  than 
declined  in  the  interval.     Verdict  for  the  defendant. 
Cox  v.  Feeney,  4  F.  &  F.  13. 
But  the  conduct  of  a  trustee  of  a  private  corporation,  as  such  trustee,  is  not 
a  matter  of  public  interest. 

Wilson  v.  Fitch,  41  Cal.  363. 

4.  Ecclesiastical  Affairs. 

A  bishop's  government  of  his  diocese,  a  rector's  management  of 
his  parish,  or  of  the  parochial  school,  arc  matters  of  public  intei'est. 
So  is  the  manner  in  which  "  public  worship  "  is  celebrated  in  the 
Established  Church.  But  an  unobtrusive  charitable  organization 
privately  established  by  the  rector  in  the  parish  is  not  a  fit  subject 
f or  public  comment. 

Illustrations. 

The  press  may  comment,  on  the  fact  that  the  incumbent  of  a  parish  has, 
contrary  to  the  wishes  of  the  church-warden,  allowed  books  to  be  sold  in  the 
Qhurch  during  service,  and  cooked  a  chop  in  the  vestry  after  the  service  was 
over. 

Kelly  v.  Tingling,  L.  R.  1  Q.  B.  699  ;  35  L.  J.  Q.  B.  231  ;  14  W.  R 
51  ;  13  L.  T.  255  ;    12  Jur.  N.  S.  940. 
(108) 


CRITICISM    ON    BOOKS    AND    PICTURES.  3  7 

[*48]  But  where  a  vicar  started  a  clothing  society  in  his  parish,  expressly- 
excluding  all  Dissenters  from  its  benefits,  it  was  held  that  this  was  essentially  a 
private  society,  the  members  of  which  might  manage  it  as  they  pleased,  with 
out  being  called  to  account  by  anyone  outside  :  and  that  therefore  a  Dissenting 
organ  was  not  justified  in  commenting  on  the  limits  which  the  vicar  had  im- 
posed on  the  desire  of  his  parishioners  to  clothe  the  poor. 

Gathercole  v.  Miall,  15  M.  &  W.  319  ;  15  L.  J.  Ex.  179  ;  10  Jur. 

337. 
And  see  Walker  v.  Brogden,  19  C.  B.  N.  S.  65  ;  11  Jur.  K.  S.  671  ; 

13  W.  R.  809  ;  12  L.  T.  495. 
Booth  v.  Briscoe  (C.  A.)  2  Q.  B.  D.  496  ;  25  W.  R.  838. 
"The  court  in  Gatherole  v.  Miall,  were  equally  divided  on  the  question  whether 
sermons  preached  in  open  church,  but  not  printed  and  published,  were  matter 
for  public  comment.     If  the  sermon  itself  dealt  with  matters  of  public  interest, 
I  apprehend  it  would  be. 

5.  Books,  Pictures,  cOc. 

"A  man  who  publishes  a  book  challenges  criticism."  (Per  Cock- 
burn,  C.  J.,  in  Strauss  v.  Francis,  4  F.  &  F.  1114  ;  15  L.  T.  675). 
Therefore  all  fair  and  honest  criticism  on  any  published  book  is  not 
libellous.  But  the  critic  must  not  go  out  of  his  way  to  attack  the 
private,  character  of  the  author.  (ffiaser  v.  Berkeley,  7  C.  &  P. 
621.)  So,  too,  it  is  not  libellous  fairly  and  honestly  to  criticise  a 
painting  publicly  exhibited,  or  the  architecture  of  any  public  build- 
ing, however  strong  the  terms  of  censure  used  maybe.  (Thompson 
v.  ShackeU,  Moo.  &  Mai.  187.) 

Illustrations. 

The  Athenaeum  published  a  critique  on  a  novel  written  by  the  plaintiff,  de- 
scribing it  as  "  the  very  worst  attempt  at  a  novel  that  has  ever  been  perpetrated,'' 
and  commenting  severely  on  "  its  insanity,  self-complacency,  and  vulgarity,  its 
profanity,  its  indelicacy,  (to  use  no  stronger  word),  its  display  of  bad  Latin,  bad 
French,  bad  German,  and  bad  English,"  and  its  abuse  of  persons  living  and 
dead.  After  Erie,  C.  J.,  had  summed  up  the  case,  the  plaintiff  withdrew  a 
juror. 

Strauss  v.  Francis  (No.  1),  4F.  &F.  939. 
See  Sir  ■  John  Carr  v.  Hood,  1  Camp.  355,  n. 
The  Athena' a ni  thereupon  published  another  article  stating  their  reason  for 
consenting  to  the  withdrawal  of  a  juror,  which  was  in  fact  that  they  considered 
the  plaintiff  would  have  been  unable  to  have  paid  them  their  costs,  had  they 
gained  a  verdict.  The  plaintiff  thereupon  brought  another  action  which 
was  tried  before  Cockburn,  C.  J.,  and  the  jury  found  a  verdict  for  the  defend- 
ants. 

Strauss  v.  Francis  (No.  2),  4  F.  &  F.  1107  ;  15  L.  T.  674. 
[*  49]     It  is  doubtful   how  far  a  book  printed  for  private  circulation  only, 
may  be  criticised. 

Per  Polluck,  C.  B.,  in  Gathercole  v.  Miall,  15  M.  &  W.  334;  15 
L.  J.  Ex.  179  ;  10  Jur.  337. 
A  comic  picture   of  the  author  of  a  book,  as  author,  bowing  beneath  the 
weight  of  his  volume,  is  no  libel  ;  though  a  personal  caricature  of  him  as  he 
appeared  in  private  life  would  be. 

Sir  John  Carr  v.  Hood,  1  Camp.  355,  n. 
The  articles  which  appear  in  a  newspaper  and  its  general  tone  and  style  may 
be  the  subject  of  adverse  criticism,  as  well  as  any  other  literary   production  ; 
but  no  attack  should  be  made  on  the  private  character  of  any  writer  on  its  staff. 
Herint  v.    Stuart,  1  Esp.  437. 
Stuart  v.    Lovell,  2  Stark.  93. 

Campbell  v.   Spottisioodde,  3  F.  &  F.  421  ;  32  L.  J.  Q.  B.  185  ;  3  B. 
&  S.  769  ;  9  Jur.  N.  S.  1069  ;  11  W.  R.  569  ;  8  L.  T.  201. 
(109) 


38  DEFAMATORY    WORDS. 

The  greatest  art  critic  of  the  day  wrote  and  published  in  Fors  Clavigera  an 
article  on  the  pictures  in  the  Grosvenor  Gallery,  in  which  the  following  pas- 
sage occurred  :  "  Lastly,  the  mannerisms  and  errors  of  these  pictures  [alluding 
to  the  pictures  of  Mr.  Burne  Jones],  whatever  may  he  their  extent,  are  never 
affected  or  indolent.  The  work  is  natural  to  the  painter,  however  strange  to  us, 
and  is  wrought  with  the  utmost  conscience  of  care,  however  far  to  his  own  or 
our  desire  the  result  may  yet  be  incomplete.  Scarcely  as  much  can  be  said  for 
any  other  pictures  of  the  modern  school  ;  their  eccentricities  are  almost  always 
in  some  degree  forced,  and  their  imperfections  gratuitously,  if  not  impertinently, 
indulged.  For  Mr.  Whistler's  own  sake,  no  less  than  for  the  protection  of  the 
purchaser,  Sir  Coutts  Lindsay  ought  not  to  have  admitted  works  into  the  gal- 
lery in  which  the  ill-educated  conceit  of  the  artist  so  nearly  approached  the 
aspect  of  wilful  imposture.  I  have  seen  and  heard  much  of  cockney  impudence 
before  now,  but  never  expected  to  hear  a  coxcomb  ask  200  guineas  for  flinging 
a  pot  of  paint  in  the  public's  face."  The  jury  considered  the  words  "  wilful 
imposture  "  as  just  overstepping  the  line  of  fair  criticism,  and  found  a  verdict 
for  the  plaintiff  ;  damages  one  farthing.     Each  party  had  to  pay  his  own  costs. 

Whistler  v.  Buskin,  Times  for  Nov.  20th  and  27th,  1878. 

Thompson  v.  Shaekell,  Moo.  &  Mai.  187. 
The  plaintiff  was  a  professor  of  architecture  in  the  Royal  Academy.  The 
defendant  published  an  account  of  a  new  order  of  architecture  called  "the 
Boeotian,"  said  to- be  invented  by  the  plaintiff,  whom  he  termed  "  the  Boeotian 
professor."  He  set  forth  several  absurd  principles  as  the  rules  of  this  new  order, 
illustrating  them  by  examples  of  buildings  all  of  which  were  the  works  of  the 
plaintiff.  The  jury,  under  the  direction  of  Lord  Tenterden,  C.  J.,  found  a 
verdict  for  the  defendant. 

Soane  v.  Knight,  Moo.  &  Mai.  74. 

And  see  Oott  v.  Pulsifer,  122  Mass.  235. 

Cooper  v.  Stone,  24  Wend.  434. 

6.    Theatres,    Concerts,  and  Public  Entertainments. 
All    theatrical    and  musical    performances,   flower-shows,  public 
balls,  &c,  may  be  freely  criticised,  provided  that  the  comments  be 
not  malevolent  or  flagrantly  unjust. 

[*t0]  Illustrations. 

A  gentleman  wholly  unconnected  with  the  stage  got  up  what  he  called 
"  a  Dramatic  Ball."  The  company  was  disorderly  and  far  from  select.  No 
actor  or  actress  of  any  reputation  was  present  at  the  ball,  or  took  any  share  in 
the  arrangements.  The  Era,  the  special  organ  of  the  theatrical  profession, 
published  an  indignant  article,  commenting  severely  on  the  conduct  of  the  pros- 
ecutor in  starting  such  a  ball  for  his  own  profit,  and  particularly  in  calling 
such  an  assembly  "  a  Dramatic  Ball."  See  the  article,  44  J.  P.  377.  Criminal 
proceedings  were  taken  against  the  editor  of  the  Era,  but  the  jury  found  him 
Not  guilty. 

/.'.  v.  Ledger,  limes  for  Jan.  14th,  1880. 

And  see  Bibdin  v.  Swan  and  Bostoek,  1  Esp.  28. 

A  newspaper,  commenting  on  a  flower-show,  denounced  one  exhibitor  by 
name  as  "a  beggarly  soul,"  "  famous  in  all  sorts  of  dirty  work,"  and  spoke  of 
"the  tricks  by  which  he  and  a  few  like  him  used  to  secure  prizes"  as  being 
now  "broken  in  upon  by  some  judges  more  honest  than  usual."  Such  remarks 
are  clearly  not  fair  criticism  on  the  flower-show. 

Green  v.  Chapman,  4  Bing.  N.  C.  92;  5  Scott,  340. 

The  plaintiff,  the  proprietor  of  Zadkiel's  Almanac,  had  a  ball  of  crystal  by 
means  of  which  he  pretended  to  tell  what  was  going  on  in  the  other  world. 
The  Daily  Telegraph  published  a  letter  which  stated  that  the  plaintiff  had 
"gulled  "many  of  the  nobility  with  this  crystal  ball,  that  he  took  money  for 
"  these  profane  acts,  and  made  a  good  thing  of  it."'  Cockburn,  C.  J.,  directed 
the  jury  that  a  newspaper  might  expose  what  it  deemed  an  imposition  on  the 
public;  but  that  this  letter  amounted  to  a  charge  that  the  plaintiff  had  made 
money  by  wilful  and  fradulent  misrepresentations,  a  charge  which  should  not 

(110) 


APPEALS    TO    THE    PUBLIC.  39 

be  made  without  fair  grounds.     Verdict  for  the  plaintiff.     Damages  one  far- 
thing. 

Morrison  v.  Belcher,  3  F.  &  F.  G14. 

t)uplany  v.  Darts,  3  Times  L.  R.  184. 

Merrimle  and  wife  v.  Carson,  3  Times  L.  R.  431. 

7.    Other  A])peals  to  the  Public. 

Whenever  a  medical  man  brings  forward  some  new  method  of 
treatment,  and  advertises  it  largely  as  the  Lest  or  only  cure  for 
some  particular  disease,  or  for  all  diseases  at  once,  he  may  be  said 
to  invite  public  attention.  So  when  a  tradesman  distributes  hand- 
bills or  circulars,  he  challenges  public  criticism.  A  newspaper 
writer  is  justified  in  warning  the  public  against  such  advertisers, 
and  in  exposing  the  absurdity  of  their  professions,  provided  he  does 
so  fairly  and  with  reasonable  moderation  and  judgment. 

Again,  where  a  man  appeals  to  the  public  by  writing  letters  to 
the  newspaper,  either  to  expose  what  he  deems  [*51]  abuses,  or  to 
call  attention  to  his  own  particular  grievances,  he  cannot  complain 
if  the  editor  inserts  other  letters  in  answer  to  his  own,  refuting  his 
charges,  and  denying  his  facts.  A  man  who  has  commenced  a 
newspaper  warfare  cannot  complain  if  he  gets  the  worst  of  it.  But 
if  such  answer  goes  further,  and  touches  on  fresh  matter  in.no  way 
connected  with  the  plaintiff's  original  letter,  or  unnecessarily  assails 
the  plaintiff's  private  character,  then  it  ceases  to  be  an  answer;  it 
becomes  a  counter-charge,  and  if  defamatory  wrill  be  deemed  a 
libel. 

So,  too,  when  a  man  comes  prominently  forward  in  any  way,  and 
acquires  for  a  time  a  quasi-'public  position,  he  cannot  escape  the 
necessary  consequence — the  free  expression  of  public  opinion. 
Whoever  seeks  notoriety,  or  invites  public  attention,  is  said  to 
challenge  public  criticism  ;  and  he  cannot  resort  to  the  law  courts 
if  that  criticism  be  less  favorable  than  he'  anticipated. 

Illustrations. 

A  medical  man  who  had  obtained  a  diploma  and  the  degree  of  M.D.  from 
America  advertised  most  extensively  a  new  and  infallible  cure  for  consumption. 
The  Pall  Mall  Gazette  published  a  leading  article  on  the  subject  of  such  adver- 
tisements, in  which  they  called  the  advertiser  a  quack  and  an  impostor,  and 
compared  him  to  "scoundrels  who  pass  bad  coin."  The  jury  gave  the  plaintiff 
one  farthing  damages. 

harder  v.  Sharpe,  4  F.  &  F.  983  :  15  L.  T.  421. 
And  see  Morrison  and  another  v.  Harmer  and  another,  3  Bing.  N.  G. 
759  ;  4  Scott,  524  ;  3  Hodges,  108. 
A  marine  store  dealer  extensively  circulated  a  handbill  setting  forth  the  high 
prices  he  was  prepared  to  give  for  kitchen  stuff,  rags,  bones,  oilcloth,  brass, 
copper,  lead,  plated  metals,  horsehair,  and  old  clothes.     An  alderman  sitting 
as  magistrate  at  Guildhall  denounced  this  handbill,  as  offering  great  induce- 
mentslo  servants  to  rob  their  masters.     The  alderman's  remarks,  together  with 
the  handbill   itself  verbatim,  were   published  in  the  Da/7//   Telegraph,  with  a 
heading   "Encouraging  Servants  to  Rob  their  Masters,"  and  also  a   leading 
article  in  the  same  strain.      The  jury,  under  the  direction  of  Erie,  C.  J.,  found 
a  verdict  for  the  defendant. 

Ferris  v.  Levy,  9  C.  B.  N.  S.  342  ;    30  L.  J.  G.  P   11  ;   3  L.  T.  324 ; 

9  W.  R.  7i  ;  7  Jur.  N.  S.  289  ;  and  (at  Nisi  Prius)  2  F.  &  F.  71. 
And  see  Eastwood  v.  Holmes,  1  F.  &  F.  347. 
(Ill) 


40  DEFAMATORY    WORDS. 

Jenner  and  anotlwr  v.  A'Beekett,  L.  R.  7  Q.  B.  11 ;  41  L.  J.  Q.  B.  14  ; 
20  W.  K.  181  ;  25  L.  T.  464. 
Two  clergymen  were  engaged  in  a  controversy  ;  one,  the  plaintiff,  wrote  a 
[*52]  pamphlet  ;  subsequently  he  published  a  "collection  of  opinions  of  the 
press"  on  his  own  pamphlet,  including  an  inaccurate  or  garbled  extract  from 
an  article  which  had  appeared  in  the  defendant's  newspaper.  The  defendant 
thereupon  felt  it  his  duty,  in  justice  to  the  other  clergyman,  to  publish  an 
article  in  his  newspaper  exposing  the  inaccuracy  of  the  extract  as  given  by  the 
plaintiff,  and  accusing  him  of  purposely  adding  some  passages  and  suppressing 
others,  so  as  to  entirely  alter  the  sense.  Erie,  C.  J.,  pointed  out  to  the  jury 
that  the  defendant  was 'maintaining  the  truth,  and  that  although  he  was  led  into 
exaggerated  language,  the  plaintiff  had  also  used  exaggerated  language  himself. 
Verdict  for  the  defendant. 

Hibbs  v.  Wilkinson,  1  F.  &  F.  608. 
But  where  the  editor  of  the  Lancet  attacked  the  editor  of  a  rival  paper,  the 
London  Medical  and  Physical  Journal,  by  rancorous  aspersions  on  his  private 
character,  the  plaintiff  recovered  a  verdict,  damages  £5. 

Macleod  v.  Wakley,  3  C.  &  P.  311. 
So  wherever  a  man  calls  public  attention  to  his  own  grievances  or  those  of 
his  class,  whether  by  letters  in  a  newspaper,  by  speeches  at  public  meetings,  or 
by  the  publication  of  pamphlets,  he  must  expect  to  have  his  assertions  chal- 
lenged, the  existence  of  his  grievances  denied,  and  liimself  ridiculed  and 
denounced. 

Odrjer  v.  Mortimer,  28  L.  T.  472. 

Kasnig  v.  Ritchie,  3  F.  &  F.  413. 

R.  v.   Veley,  4  F.  &  F.  1117. 

(/Donofjhue  v.  Hussey,  Ir.  R  5  C.  L.  124. 
,  LJtcyer  v.  Esmond,  2  L.  R.  (Ir.)  243. 
But  where  the  defendant  in  answering  a  letter  which  the  plaintiff  has  sent  to 
the  paper,  does  not  confine  himself  to  rebutting  the  plaintiff's  assertions,  but 
retorts  upon  the  plaintiff  by  inquiring  into  his  antecedents,  and  indulging  in 
other  uncalled  for  personalities,  the  defendant  will  be  held  liable  ■,  for  such 
imputations  are  neither  a  proper  answer  to,  nor  a  fair  comment  on,  the  plaintiff's 
speech  or  letter. 

Murphy  v.  Halpin,  Ir.  R.  8C.  L.  127. 
Three  clergymen  of  the  Church  of  England,  residing  near  Swansea,  being 
Conservatives,  chose  to  attend  a  meeting  of  the  supporters  of  the  Liberal  can- 
didate for  Swansea  ;  they  behaved  in  an  excited  manner,  hissed  and  interrupted 
the  speakers,  and  had  eventually  to  be  removed  from  the  room  by  two  police- 
men. Held  that  such  conduct  might  fairly  be  commented  on  in  the  local  news- 
papers ;  and  that  even  a  remark  that  "  appearances  were  certainly  consistent 
with  the  belief  that  they  had  imbibed  rather  freely  of  the  cup  that  inebriates" 
was  not,  under  the  circumstances,  a  libel. 

Davis  v    Duncan,  L.  R.  9  C.  P.  396 ;  43  L.  J.  C.  P.  185  ;  22  W.  R. 
575  ;  30  L.  T.  464. 


PART  II.  ['53] 

SLANDER. 

Words  which  are  cleai'ly  defamatory  when  written  and  pub- 
lished may  not  be  actionable  when  merely  spoken  ;  for  then  other 
considerations  apply.  The  reasons  for  the  distinction  have  been 
already  discussed,  ante,  pp.  3,  18.  Spoken  words  are  defamatory 
whenever  special  damage  has  in  fact  resulted  from  their  use. 
Spoken  words  are  also  defamatory  when  the  imputation  cast  by 
them  on  the  plaintiff  is  on  the  face  of  it  so  injurious  that  the  Court 

(112) 


WORDS    IMPUTING    A    CRIME.  41 

will  presume,    without  any    proof,  that    his  reputation    has    been 
thereby  impaired.      And  the  Court  will  so  presume  in  three  cases  : — 

I.   Where  the  words  charge  the  plaintiff  with  the  commission 
of  a  crime  ;  or, 

II.   Impute  to  him  a  contagious  or  infectious  disease  tending  to 
exclude  him  from  society  ;  or, 

III.   Are  spoken  of  him  in  the  way  of  his  office,  profession,  or 
trade. 

In  no  other  case  are  spoken  words  defamatory,  unless  they  have 
caused  some  special  damage  to  the  plaintiff. 

I.    Where    the    Words  impute  a  Crime. 

Spoken  words  which  impute  that  the  plaintiff  has  been  guilty  of 
a  crime  punishable  with  imprisonment  are  actionable  without  proof 
of  special  damage.  If  the  offence  imputed  be  only  punishable  by 
penalty  or  fine,  the  words  [*54]  will  not  be  actionable  per  se. 
Webb  v.  Beavan,  11  Q.  B.  D.  609  ;  52  L.  J.  Q.  B.  544  ;  49  L.  T. 
201  ;  47  J.  P.  488.) 

It  has  been  usual  hitherto  to  state  that  words  which  impute  an 
indictable  offence  are  actionable^xr  se,  as  all  indictable  offences  are 
punishable  with  imprisonment.  But  there  now  are  many  offences 
which  are  not  indictable  and  yet  are  punishable  summarily  with  im- 
prisonment in  the  first  instance  ;  so  the  above  appears  a  more  accu- 
rate statement  of  the  law.  Words  which  merely  impute  an  offence 
for  which  a  magistrate  can  only  inflict  imprisonment  in  default  of 
payment  of  a  fine  imposed  are  not,  I  apprehend,  actionable  per  se. 
Words  imputing  to  a  licensed  victualler  that  he  had  been  guilty  of 
an  offence  against  the  Licensing  Acts  would  be  actionable,  as  spoken 
of  him  in  the  way  of  his  trade  :  and  so  would  words  spoken  of  a 
dairyman  or  grocer  falsely  alleging  that  he  had  been  convicted 
under  the  Sale  of  Food  and  Drugs  Act,  1875. 

There  has  been  considerable  fluctuation  of  opinion  as  to  the  exact 
limits  of  this  rule.  In  Queen  Elizabeth's  days  some  judges  con- 
sidered that  words  were  actionable  which  imputed  to  the  plaintiff 
conduct  which  would  be  sufficient  ground  for  binding  him  over  to 
good  behaviour.  (See  Sir  Edward  Bray  v.  Andrews  (1564), 
Moore,  63  ;  Lady  Cockaine's  Case  (1586),  Cro.  Eliz.  49  ;  Tibbott  v. 
Haynes  (1590),  Cro.  Eliz.  191.)  In  Queen  Anne's  reign,  on  the  other 
hand,  Holt,  C.  J.,  in  Ogden  v.  Turner,  6  Mod.  104  ;  Holt,  40  ;  2 
Salk.  696,  lays  it  down  that  every  charge  of  treason  or  felony  is 
actionable,  but  not  every  charge  of  misdemeanour,  only  of  such  as 
entail  a  "scandalous"  and  "  infamous"  punishment.  I  presume, 
however,  this  would  include  all  indictable  misdemeanours,  except 
such  semi-civil  proceedings  as  an  indictment  for  the  obstruction  or 
non-repair  of  a  highway. 

It  is  not  necessary  that  the  defendant  should  specify  the  crime 
imputed,  if  it  is  clear  that  the  plaintiff  is  accused,  of  some  crime 

(113) 


42  .       DEFAMATORY    WORDS. 

punishable  with  imprisonment.  An  innuendo,  " meaning  thereby 
that  the  plaintiff  had  been  and  was  guilty  of  having  committed  some 
criminal  offence  or  offences,"  was  held  sufficient  in  Webb  v. 
Beavan,  11  Q.  B.  D.  009;  52  L.  J.  Q.  B.  544  ;  49  L.  T.  201  ;  47 
J.  P.  488. 

Illustrations. 

A  general  charge  of  felony  is  actionable,  though  it  does  not  specify  any  par- 
ticular felony.     E.  g.  : 

"  If  you  had  had  your  deserts,  you  would  have  been  hanged  b  Tore  now." 

Donne's  Case,  Cro.  Eliz.  (12. 
"  He  deserves  to  have  his  ears  nailed  to  the  pillory." 

Jenkinson  v.  Mayne,  Cro.  Eliz.  381  ;  1  Vin.  Abr.  415-. 
[  *  55  ]     "  You  have  committed  an  act  for  which  I  can  transport  you." 

Curtis  v.  Curtis,  10  Bing.  477  ;  3M.  &  Scott,  819  ;  4  M.  &  Scott,  337. 
"  You  have  done  many  things  for  which  you  ought  to  be  hanged,  and  I  will 
have  you  hanged." 

Francis  v.  Boose,  3  M.  &  W.  191  ;  1  H.  &  H.  36. 
"  I  have  got  a  warrant  for  Tempest.     I  shall  transport  him  for  felony." 

Tempest  v.  Chambers,  1  Stark.  07. 
"  I  will  lock  you  up  in  Gloucester  gaol  next  week.     I  know  enough  to  put 
you  there." 

Webb  v.  Beavan,  11  Q.  B.  D.  009  ;  52  L.  J.  Q.  B.  544^;  49  L.  T.  201; 

47  J.  P.  488. 
So  are  all  charges  of  specific  felonies.     E.  g.  : 
Assault  with  intend  to  rob  : — 

Lewknor  v.  Cruchley  and  wife,  Cro.  Car.  140. 
Attempt  to  murder  : — 

Scot  et  u.v.  v.  Hilliar,  Lane,  98  ;  1  Vin.  Abr.  440. 

Breston  v.  Binder,  Cro.  Eliz.  308. 
Bigamy  :— 

Heming  et  ux.  v.  Bower,  10  M.  &  W.  5G4. 

Delany  v.  Jones,  4  Esp.  191. 
Burglary  : — 

Sommers  v.  House,  Holt,  39  ;  Skin.  364. 
Demanding  money  with  menaces  : — 

Neve  v.  Cross,  Sty.  350. 
Embezzlement  : — 

Williams  v.  Stott,  1  C.  &  M.  675  ;  3  Tyrw.  688. 
Forgery  : — 

Baal  v.  Baggerley,  Cro.  Car.  326. 

Jones  v.  Heme,  2  Wils.  87. 
Larceny  : — 

Foster  v.  Browninq,  Cro.  Jac.  688. 

Baker  v.  Pierce,  2  Ld.  Raym.  959  ;  Holt,  654 ;  6  Mod.  23;  2  Salk.  695. 

Slowman  v.  Button,  10  Bing.  402. 

Tomlinson  v.  Brittlebauk,  4B.  &  Ad.  630  ;  1  N.  &  M.  455. 
Manslaughter  : — 

Ford  v.  Brimrose,  5  P.  &  R.  287. 

Edsall  v.  Russell,  4  M.  &  G.  1090 ;  5  Scott,  N.  R.  801;  2  Bowl.  N.  S. 
641  ;  12  L.  J.  C.  P.  4  ;  0  Jur.  996. 
Murder : — 

Beake  v.  Oldham,  Cowp.  275;  S.  C.  Sub  nam.  Oldham  v.  Beake,  2  W. 
Bl.  959. 

Button  v.  Hayward,  8  Mod.  24. 
Receiving  stolen  goods,  knowing  them  to  have  been  stolen  : — 

Brigg's  Case,  Godb.  157. 

Clark's  Case  de  Dorchester,  2  Rolle's  Rep.  136. 

Alfred  v.  Farlow,  8  Q.  B.  854  ;  15  L.  J   Q.  B.  258  ;  10  Jur.  714. 
Robbery  : — 

Lawrence  v.   Woodward,  Cro   Car.  277  ;  1  Roll.  Abr.  74. 

(114) 


WORDS    IMPUTING    A    CRIME.  43 

Rowcliffe  v.  Edmonds  et  ux.,  7  M.  &  W.  12  ;  4  Jur.  684. 
[*  56]     Treason  :— 

Sir  William  Waldegrave  v.  Ralph  Agas,  Cro.  Eliz.  191. 
Stapleton  v.  Frier,  Cro.  Eliz.  251. 
Fry  v.  Came,  8  Mod.  283. 
Unnatural  offences  : — 

Ihomson  v.  Nye,   16  Q.  B.  175  ;  20  L.  J.  Q.  B.  85  ;  15  Jur.  285. 
Woolnoth  v.  Meadows,  5  East,  463  ;  2  Smith,  28. 
Golman  v.  Godwin,  3  Dougl.  90  ;  2  B.  &  C.  28."),  n. 
'So  it  is  actionable  without  proof  of  special  damage  to  charge  another  with  the 
commission  of  the  following  misdemeanours  : — 
Bribery  and  corruption  : — 

Bendish  v.  Lindsay,  11  Mod.  194. 
Conspiracy  : — 

Tibbott  v.  Haynes,  Cro.  Eliz.  191. 
Keeping  a  bawdy-house  : — 

Brayne  v.  Cooper,  5  M.  &  AY.  249. 
Ruckle  v.  Reynolds,  7  C.  B.  N.  8.  114. 
Libel  :— 

Sir  William  Russell  v.  Ligon,  1  Roll.  Abr.  48  ;  1  Vin.  Abr.  423. 
Perjury  : — 

Ceely  v.  Hoskins,  Cro.  Car.  509. 
Holt  v.  Schole field,  6  T.  R.  691. 
Roberts  v.  Camden,  9  East.  93. 
Even  in  an  ecclesiastical  Court, 

Shaw  v.  Thompson,  Cro.  Eliz.  639. 
Soliciting  another  to  commit  a  crime  : — 

Sir  Thomas  Cockaine  and  wife  v.  Witnam,  Cro.  Eliz.  49. 
Leversage  v.  Smith,  Cro.  Eliz.  710. 
Tibbott  v.  Haynes,    Cro.  Eliz.  191. 
Passie  v.  Mondford,  Cro.  Eliz.  747. 
Deane  v.  Eton,  1  Buls.  201. 
Sir  Harbert  Crofts  v.  Brown,  3  Buls.  167. 
Subornation  of  perjury  : — 

Guerdon  v.  Winterstud,  Cro.  Eliz.  308. 
.  Harris  v.  Dixon,  Cro.  Jac.  158. 
Bridges  v.  Playdel,  Brownl.  &  Golds.  2. 

Harrison  v.  Thornborough,  10  Mod.  196 ;    Gilbert's    Cases  in  Law 

&  Eq.  114. 

Where   the  words  impute  merely  a  trespass  in  pursuit  of    game    punishable 

primarily  by  line  alone,  no  action  lies  without  proof  of  special  damage,  although 

imprisonment  in  the  pillory  may  be  indicted  in  default  of  payment  of  the  fine 

(3  Wm.  &  M.  c.  10.) 

Ogden  v.  Turner  (1705),  6  Mod.  104;  Salk.  696  ;  Holt,  40. 
[  Certain  dicta  in  this  case  which  appear  to  go  further,   were  disapproved  of 
by  Grey,  C.  J.,  in  3  Wils.  186,  and  must  be  now  considered  as  bad  law.] 

*  Where  the  words  imputed  an  offence  against  the  Fishery  Acts,  punishable 
only  by  fine  and  forfeiture  of  the  nets  and  instruments  used  :  Held  that  no  action 
lay  "without  proof  of  special  damage. 

McCabe  v.  Foot,  18  Ir.  Jur.  (Vol.  xi.  K  S.)  287  ;  15  L.  T.  115. 
Defendant  charged  plaintiff  with  a  breach  of  the   9th   bye  law  of  the  Great 
[*  57]     Western  Railway  Company,  which  is  punishable  with  a  penalty  of  40*. 
only.     Field,  J.,  held  that  no  action  lay. 

Preston  v.  Be  Windt,  Times  for  July  7th,  1884. 
In   Maryland  adultery  is  still  an    offence  against  the   State  ;  but  punishable 
only  by  fine.     Hence  to  impute  adultery  to  a  married  woman  is  not  actionable 
there.     (I  believe  this  is  the  only  one  of  the  United  States  in  which  the  law 
is  so.) 

Griffin  v.  Moore,  43  Md.  246. 
Shdfer  v.  Ahalt,  48  Md.  171  ;  30  Amer.  Rep.  456. 
Words  which  merely  impute  a  criminal  intention,  not  yet  put  into  action,  are 
not  actionable.     Guilty  thoughts  are  not  a  crime.     But  as  soon  as  any  step  is 

(115) 


44  DEFAMATORY    WORDS. 

taken  to  carry  out  such  intention,  as  soon  as  any  overt  act  is  done,  an  attempt 
to  commit  a  crime  has  been  made  ;  and  every  attempt  to  commit  an  indictable 
offence  is  a1  common  law  a  misdemeanour,  and  in  itself  indictable.  Per  Lord 
Mansfield  in  /.'.  v.  Scofield  (1784),  Caldecott,  397.  To  imprto  such  an  attempt  is 
therefore  clearly  actionable. 

Harrison  v.  strut/on,  4  Esp.  217. 

Words  imputing  a  purely  military  offence  are  not  actionable  without  proof 
of  speeial  damage. 

Hollingsworth  v.  Shaw,19  Ohio  St.  430. 

But  where  the  speaker  makes  no  definite  charge  of  felony,  but 
uses  words  which  merely  disclose  a  suspicion  that  is  in  his  mind, 
no  action  lies,  without  proof  of  special  damage. 

Illustrations. 

The  clerk  of  the  crown  for  the  Island  of  Grenada  said  of  the  plaintiff,  "  He 
lies  here  under  suspicion  of  having  murdered  a  man  named  Emanuel  Van- 
crossen  at  the  Spout  some  years  ago,"  and  also,  "  Haven't  you  heard  that  Charles 
Simmons  is  suspected  of  having  murdered  one  Vancrossen,  his  brother-in-law  ? 
A  proclamation  offering  a  reward  for  the  apprehension  of  the  murderer  is  now 
in  my  office,  and  there  is  only  one  link  wanting  to  complete  the  case."  Held, 
that  this  amounted  at  the  most  to  words  of  mere  suspicion,  and  that  no  action 
lay. 

Simmons  v.  Mitchell,  6  App.  Gas.  156  ;  50  L.  J.  P.  C.  11  ;  29  W.  R. 
401  ;  43  L.  T.  710  ;  45  J.  P.  237. 
The  following  words  do  not  amount  to  a  charge  of  larceny  : — 
"  You  as  good  as  stole  the  canoe." 

'  Stokes  v.  Arey,  8  Jones,  46. 
Or,  "  A  man  that  would  do  that  would  steal." 

Stees  v.  Kemble,  3  Casey  (27  Penn.  St.)  112. 
The  words,  "  I  will  take  him  to  Bow  Street  on  a  charge  of  forgery,"  are  not 
actionable,  for  they  do  not  amount  to  a  charge  that  the  plaintiff  had  committed 
felony. 

Harrison  v.  King,  4  Price,  46  ;  7  Taunt.  431. 
The   wrords  "  I  charge    him   with  felony,"  were  held  insufficient  in  three 

Poland  v.  Mason  (1620),  Hob.  305,  326. 

Wheeler  v.  Popleston  (1624),  1  Roll.  Abr.  72. 

Wood  v.  Merrick  (1626),  1  Roll.  Abr.  73. 
[*  58]  But,  "Bear  witness,  my  masters,  I  arrest  him  of  felony,"  w as  held 
sufficient  in 

Serle  v.  Maunder  (1620),  1  Roll.  Abr.  72. 
The  words  were,  "  I  have  a  suspicion  that  you  and  Bone  have  robbed  my 
house,  and  therefore  I  take  you  into  custody."  At  the  trial,  Pollock,  C.  B., 
told  the  jury  that  if  they  found  that  the  defendant  meant  to  impute  to  the 
plaintiff  an  absolute  charge  of  felony,  in  such  case  the  plaintiff  was  entitled  to 
the  verdict;  but,  on  the  other  hand,  if  they  should  think  that  he  imputed  a 
mere  suspicion  of  felony,  the  defendant  would  be  entitled  to  the  verdict.  Ver- 
dict for  defendant.     Held,  that  the  direction  and  the  verdict  were  right. 

Tozer  v.  Mashford,  6  Ex.  539  ;  20  L.  J.  Ex.  225. 
But  the  words  "  I  have  got  a  warrant  for  Tempest.     I  will  advertise  a  reward 
for  20  guineas  to  apprehend  him.     f  shall  transport  him  for  felony,"   were 
properly  found  by  the  jury  to  amount  to  a  substantive  charge  of  felony. 

Tempest  v.  Chambers,  1  Stark.  67. 
An  action  lies  for  these  words  ;  "  Many  an  honcstcr  man  has  been  hanged  : 
and  a  robbery  hath  been  committed,  and  I  think  he  was  at  it  ;  and  I  think  he 
is  ahorse-stealer." 

Stick  v.  Wisedome,  Cro.  Eliz.  348. 
And  for  these  :  "  I  think  in  my  conscience  if  Sir  John  might  have  his  will,  he 
would  kill  the  king." 

Sicilian)  v.  Mayo,  1  Roll.  Rep.  427  ;  Cro.  Jac.  407. 

Peake  v.  Oldham,  Cowp.  275  ;  2  Win.  Bl.  959,  post,  p.  121. 

(116) 


WORDS    IMPUTING    A    CRIME.  45 

The  words  were:  "He  is  under  a  charge  of  a  prosecution  for  perjury. 
Griffith  Williams  (meaning  an  attorney  of  that  name)  has  the  Attorney-General's 
directions  to  prosecute  for  perjury."  Defendant  did  not  justify.  After  ver- 
dict for  the  plaintiff  it  was  moved  in  arrest  of  judgment  that  the  words  were 
not  actionable,  as  they  do  not  amount  to  an  assertion  that  the  charge  is  well 
founded.  Lord Ellenborough,  C.  J.,  said  :  "  These  words,  fairly  and  naturally 
construed,  appear  to  us  to  have  been  meant,  and  to  he  calculated  to  convey 
the  imputation  of  perjury  actually  committed  by  the  person  of  whom  they  are 
spoken  ;  "  and  the  verdict  and  judgment  stood. 
Roberts  v.  Camden,  9  East,  93. 

It  is  not  necessary  that  the  words  should  accuse  the  plaintiff  of 
some  fresh,  undiscovered  crime,  so  as  to  put  him  in  jeopardy  or 
cause  his  arrest.  Of  course,  if  such  consequences  have  followed, 
they  may  be  alleged  as  special  damage  ;  but  where  such  conse- 
quences are  impossible,  the  words  are  still  actionable.  Thus,  to 
call  a  man  a  returned  convict,  or  otherwise  to  falsely  impute  that  he 
has  been  tried  and  convicted  of  a  criminal  offence,  is  actionable 
without  special  damage. 

For  it  is  at  least  quite  as  injurious  to  the  plaintiff's  reputation, 
to  say  that  he  has  in  fact  been  convicted,  as  to  say  that  he  will  be, 
or  [*59]  ought  to  be,  convicted.  Many  think  that  such  statements 
should  be  actionable,  even  when  true,  if  they  are  maliciously  or 
unnecessarily  volunteered.     See/»os«,  p.  179. 

Illustrations. 

It  is  actionable  without  proof  of  special  damage  to  say  of  the  plaintiff  that — 
He  had  been  in  Launceston  gaol  and  was  burnt  in  the  hand  for  coining. 

Oainford  v.  Take,  Cro.  Jac.  536. 
He  "  was  in  Winchester  gaol,  and  tried  for  his  life,  and  would  have  been 
hanged,  had  it  not  been  for  Leggat,  for  breaking  open  the  granary  of  farmer 
A.  and  stealing  his  bacon."     [Note  that  here  the  speaker  appears  to  admit  that 
the  plaintiff  was  acquitted,  but  still  asserts  that  lie  was  in  fact  guilt}'.] 
Carpenter  v.  Tarrant,  Cas.  temp.  Ilardwicke,  339. 
"He  was  a  thief  and  stole  my  gold."     It  was  argued  here    that  "was" 
denotes  time  past  ;  so"that  it  may  have  been  when  lie  was  a  child,  and  therefore 
no  larceny  ;  or  in  the  time  of  Queen  Elizabeth,   since  when  there  had  been 
divers  general  pardons  :  sed  per  cur.  :  "It  is  a  great  scandal  to  be  once  a  thief  ; 
for  pee n a  potest  redimi,  culpa  perennis  erit." 
Boston  v.  Tatam,  Cro.  Jac.  623. 
It  is  actionable  to  call  a  man  "  thief  "  or  "  felon,"  even  though  he  once  com- 
mitted larceny,  if  after  conviction  he  was  pardoned  either  under  the  Great  Seal 
or  by  some  general  statute  of  pardon. 

Cuddington  v.  Wilkins,  Hobart,  67,  81  ;  2  Hawk.  P.   C.  c. 
Leyman  v.  Latimer  and   others,    3   Ex.    D.    15,   352  ;    46 
765  ;  47  L.  J.  Ex.  470  ;  25  W.  R.  751  ;  26  W.    R.   305  ; 
360,  Sit*. 
It  is  actionable  to  call  a  man  falsely  "  a  returned  convict." 
Fowler  v.  Dowdney,  2  M.  &  Rob.  119. 
And  see  Bell  v.  Byrne,  13  East,  554. 

In  dealing  with  old  cases  on  this  point,  care  must  be  taken  to 
remember  the  state  of  the  criminal  law  as  it  existed  at  the  date  of 
publication. 

Illustrations. 
So  long  as  the  18  Eliz.  c.  3  was  in  force,  it  was  actionable  to  charge  a  woman 
with  being  the  mother,  a  man  with  being  the  putative  father,  of  a  bastard  child, 
chargeable  to  the  parish. 

Anne  Barts's  Case,  4  Rep.  17 ;  2  Salk.  604  ;  1  Roll.  Abr.  38. 

017) 


37 

,  s. 

48. 

L. 

J. 

Ex. 

37 

L. 

T. 

46  DEFAMATORY    WORDS. 

Saltt  r  v.  Browne,  Cro.  Car.  436  ;  1  Roll.  Abr.  37. 
So  long  as  the  penal  statutes  against  Roman  Catholics  were  in  force  it,  was 
actionable  to  say  "  He  goes  to  mass,"  or  "  lie  harboured  his  son,  knowing  him 
to  be  a  Romish  priest." 

Walden  v.  Mitchell,  2  Ventr.  265. 

Smith  v.  Flynt,  Cro.  Jac.  300. 
Secus,  before  such  Statutes  were  passed. 

Pierrepont's  Case,  Cro.  Eliz.  808. 
[*60]  So  in  many  old  eases  sneh  words  as  "  She  is  a  witch  "were  held 
actionable,  the  statutes  1  Jac.  I.  c.  11,  being  then  in  force.  But  that  statute  is 
now  repealed  by  the  9  Geo.  II.  c.  5.  s.  3;  winch  also  expressly  provides  that  no 
action  shall  lie  for  charging  another  with  witchcraft,  sorcery,  or  any  such 
offence. 

Rogers  v.  Gravat,  Cro.  Eliz.  571. 

Dacy  v.  Clinch,  Sid.  53. 
It  was  formerly  the  custom  of  the  City  of  London,  of  the  borough  of  South- 
wark,  and  also,  it  is  said,  of  the  City  of 'Bristol,  to  cart  whores.  Hence,  to  call 
a  woman  a  "  whore  "  or  "  strumpet"  in  one  of  those  cities  is  actionable,  if  the 
action  be  brought  in  the  City  Courts,  which  take  notice  of  their  own  customs 
without  proof."  But  no  action  will  lie  in  the  Superior  Courts  at  Westminster  for 
such  words,  because  such  custom  has  never  been  certified  by  the  Recorder,  and 
would  now  be  difficult  to  prove. 

Oxford  et  ux.  v.  Cross  (1599),  4  Rep.  18. 

Hassell  v.  Capcot  (1639),  1  Via.  Abr.  395  ;  1  Roll.  Abr.  36. 

Cook  v.  Wingfield,  1  Str.  555. 

Roberts  v.  Herbert,  Sid.  97  ;  1  Keble,  418. 

Siainton  et  ux.  v.  Jones,  2  Selw.   N.  P.  1205  (13th  edn.)  ;  1  Dougl. 
•     380,  n. 

Th/yer  v.  Eastwick,  4  Burr.  2032. 

Brand  and  wife  v.  Roberts  and  wife,  4  Burr.  2418. 

Vicars  v.  Worth,  1  Str.  471. 
So,  in  Queen  Elizabeth's  days,  it  was  held  that  no  action  lay  for  saying,  "  He 
keeps  a  bawdy-house  ;  "  "  for  by  the  common  law,  he  is  not  punishable,  but  by 
the  custom  of  London  ;  and  therefore  this  action  ought  to  have  been  sued  in  the 
spiritual  court  "  {dissentiente  Glanvile). 

Anon.  (1598).  Cro.  Eliz.  643  ;  Noy,  73. 
But  by  1606  the  opinion  of  Glanvile  prevailed  ;  and  such  words   were  held 
actionable;  "the  keeping  of  a  brothel-house  is  inquirable  in  the  leet,  and  so 
a  temporal  offence." 

Thome  v.  Alice  Durham  (1606),  Noy,  117. 

Grove  and  wife  v.  Hart  (1752),  Sayer,  33  ;  B.  N.  P.  7. 
It  was  not  apparently  clear  law  till  the  present  century  (R.  v.  Higgins  (1801), 
2  East,  5  ;  R.  v.  Philipps  (1805),  6  East,  464),  that  it  was  a  misdemeanour  to 
solicit  another  to  commit  a  crime,  although  the  person  solicited  did  nothing  in 
consequence.  Hence,  in  the  following  cases  words  were  held  not  to  be  action- 
able, because  no  overt  act  was  alleged  to  have  followed  the  solicitation.  They 
would  be  held  actionable  now. 

Sir  Edward  Bray  v.  Andrews  (1564),  Moore,  63. 

Eaton  v.  Allen  (1599),  4  Rep.  16  ;  Cro   Eliz.  684. 

Sir  Harbert  Crofts  v.  Brown  (1617),  3  Buls.  167. 
It  was  held  in  1602  that  no  action  lay  for  saying  "  Master  Barnham  did  burn 
my  barn  with  his  own  hands  ;  "  for  at  that  date  it  was  not  felony  to  burn  a  barn 
unless  it  were  cither  full  of  corn  or  parcel  of  a  mansion-house  ;   and  defendant 
had  not  stated  that  his  barn  was  either. 

Barham's  Case,  4  Rep.  20  ;  Yclv.  21. 
So  it  was  in  1602  held  not  actionable  to  say  :— "  Thou  hast  received  stolen 
swine,  and  thou  knowest  they  were  stolen  ;"  for  receiving  is  not  a  common  law 
offence,  unless  it  amounts  to' comforting  and  assisting  the  felon  as  an  accessory 
[*61]  after  the  fact.  But  ever  since  3  Wm.  &  Mary.  c.  9,  s.  4,  and  4  Geo.  I.  c. 
11,   such  words  would  be  clearly  actionable. 

Dawes  v.  Bolton  or  Boughton,  Cro.  Eliz.  888  ;  1  Roll.  Abr.  68. 

Cox  v.  Humphrey,  Cro.  Eliz.  889. 
(118) 


WOEDS    IMPUTING   A    CRIME.  47 

A  charge  of  deer  stealing  would  be  actionable  now,  though  in  1705  it  was 
held  not  actionable,  because  it  was  subject  only  to  a  penalty  of  301. 
Ogden  v.  Turner,  Salk.  696  ;  Holt,  40  ;  6  Mod.  104. 
So  now  it  would  of  course  be  actionable  to  accuse  a  man  of  secreting  a  will ; 
though  such  an  accusation  was  held  not  actionable  in 
Godfrey  v.  Owen,  Palm.  21  ;  3  Salk.  327. 
And  is  still  apparently  not  actionable  in  America. 

O'Hanlon  v.  Myers,  10  Rich.  128. 
"Where  a  vicar  of  a  parish  falsely  declared  that  the  plaintiff,  a  parishioner, 
was  excommunicated,  it  was  held  an  action  lay  ;  possibly  because  the  person 
excommunicated  was  at  that  date  liable  to  imprisonment  under  the  writ  de 
excommunicato  capiendo ;  but  there  seems  to  have  been  some  allegation  of 
special  damage  in  the  declaration. 

Barnabas  v.  Traunter,  1  Vin.  Abr.  396. 
But  an  accusation  of  adultery,   fornication,  etc.,  was  never  ground  for  an 
action  in  the  civil   courts.     The  persons  accused  had  a  remedy  in  the  spiritual 
courts  till  the  18  &  19  Vict.  c.  41  ;  now  he  has  none. 

In  South  Carolina  it  was  formerly  actionable  to  call  a  white  or  Ids  wife  a 
mulatto. 

Eden  v.  Legare,  1  Bay,  171. 
Atkinson  v.  Hartley,  8  McCord,  203. 
King  v.  Wood,  1  Nott  &  M.  184. 

The  words  must  clearly  impute  a  crime  punishable  with  imprison- 
ment, although  they  need  not  state  the  charge  with  all  the  precision 
of  an  indictment.  If  merely  fraud,  dishonesty,  immorality,  or  vice, 
be  imputed,  no  action  lies  without  proof  of  special  damage.  And 
even  where  words  of  specific  import  are  employed  (such  as  "  thief  " 
or  "  traitor  "  still  no  action  lies  if  the  defendant  can  satisfy  the  jury 
that  they  were  not  intended  to  impute  crime,  but  merely  as  general 
terms  of  abuse,  and  meant  no  more  than  "  rogue  "  or  "  scoundrel." 
and  Mere  so  understood  by  all  who  heard  the  conversation.  But  if 
the  bystanders  reasonably  understand  the  words  as  definitely  charg- 
ing the  plaintiff  with  the  commission  of  a  crime,  an  action  lies. 

Illustrations. 
"You  forged  my  name  :"    these  words   are  actionable,  although  it  is  not 
stated  to  what  deed  or  instrument. 

Jones  v.  Heme,  2  Wils.  87. 

Overruling  Anon.,  3  Leon.  231  ;  1  Roll.  Abr.  65. 
[*62]  To  say  that  a  man  is  "forsworn  "  or  "  has  taken  a  false  oath "  is  not  a 
sutticientlv  definite  charge  of  perjury  ;  for  there  is  no  reference  to  any  judicial 
proceeding.     But  to  say   "Thou  art  forsworn  in  a  Court  of  record  "  is  a  suffi- 
cient charge  of  perjury  ;    for  this  will  be  taken  to  mean  that  he  was  forsworn 
while  giving  evideiice'in  a  Court  of  record  before  the  lawfully  appointed  judge 
thereof  on  some  point  material  to  the  issue  before  him. 
Stanhope  v.  Blith,  (1585),  4  Rep.  15. 
Holt  v.  Scholefield,  6  T.  R  691. 
Ceely  v.  Hoskins,  Cro.  Car.  509. 
To  say  "  I  have  been  robbed  of  three  dozen  winches  ;   you  bought  two,  one 
at  3s.,  one  at  2s.  ;    you  knew  well  when  you  bought  them  that  they  cost  me 
three  times  as  much  making  as  you  gave  for  them,  and  that  they  could  not  have 
been  honestly  come  by,"  js  a  sufficient  charge  of  receiving  stolen  goods,  know- 
ing them  to  have  been  stolen.     [An  indictment  which  merely  alleged  that  the 
prisoner  knew  the  goods,  were  not  honestly  come  by  would  be  bad.      R.  v. 
Wilson,  2  Mood.  C.  C.  52.] 

Alfred  v.  Farhw,  8  Q.  B.  854  ;  15  L  J.  Q.  B,  258  ;  10  Jur.  714. 
"  He  is  a  pick-pocket ;  he  picked  my  pocket  of  my  money,"  was  once  held  an 
insufficient  charge  of  larceny. 

Walls  or  Watts  v.  Rymes,  2  Lev.  51  ;  1  Ventr.  213  ;  3  Salk.  3:5. 

(119) 


48  DEFAMATORY    WORDS. 

But  now  this  would  clearly  be  held  sufficient. 

Baker  v.  Pierce,  2  Ld.  Raym,  959;  Holt,  654;  G  Mod.  23  ;  2  Salk. 
695. 

Stebbing  v.   Warner,  11  Mod.  255. 
"  lie  has  defrauded  a  mealman  of  a  roan  horse  "  held  not  to  imply  acriminal 
act  of  fraud  ;  as  it  is  not  stated  that  the  mealman  was  induced  to  part  with  his 
property  by  means  of  any  false  pretence. 

Richardson  v.  Allen,  2  Chit.  G57. 
Needham  v.  Bowling,  15  L.  J.  C.  P.  9. 
So  none  of  the  following   words   are  actionable    without  proof  of  special 
damage  : — 
"  Cheat"  : — 

Savage  v.  Eobery,  2  Salk.  (193  ;  Mod.  398. 
Davis  v.  Miller  et  ux.,  2  Str.  1169. 
"  Swindler"  : —  .  . 

Savile  v.  Jardine,  2  H   Bl.  531. 
Black  v.  Hunt,  2  L.  It.  Ir.  10. 
Ward  v.   Weeks,  7  Bing.  211  ;  4  M.  &  P.  796. 
"  Rogue,"  "  rascal,"  "  villain, v  &c.  : — 

Stanhope  v.  Blith,  4  Rep.  15. 
"  Runagate"  : — 

Coekaine  v.  Hopkins,  2  Lev.  214. 
' '  Cozener  "  : — 

Brunkard  v.  Segar,  Cro.  Jac.  427  ;  Hutt.  13  ;  1  Vin.  Abr.  427. 
"  Common-tilcher  "  : — 

Goodale  v.  Castle,  Cro.  Eliz.  554. 
"  Welclier"  :— 

•     Blackman  v.  Bryant,  27  L.  T.  491. 
But  "  welclier  "  is  actionable,  if  the  jury  are  satisfied  the  word  means  "  one 
[*63]  who  takes  money  from  those  who  make  bets  with  him,  intending  to  keep 
such  money  for  himself  and  never  to  part  with  it  again." 

Williams  v.  Magyer,  Times  for  March  1st,  1883. 
The  words  "  gambler,"  "black-leg,"  "  black -sheep,"  are  not  actionable  un- 
less it  can  be  shown  that  the  bystanders  understood  them  to  mean  "  a  cheating 
gambler  punishable  by  the  criminal  law." 

Burnett  v.  Allen,  3  II.  &  N.  376  ;  27  L.  J.  Ex.  412  ;  1  F.  &  F.  125  ; 
4  Jur.  K  S.  488. 

If  the  crime  imputed  be  one  of  which  the  plaintiff  could  not  by 
any  possibility  be  guilty,  and  all  who  heard  the  imputation  knew 
that  he  could  not  by  any  possibility  be  guilty  thereof,  no  action  lies, 
for  the  plaintiff  is  never  in  jeopardy,  nor  is  his  reputation  in  any 
way  impaired.  (Buller's  N.  P.  5.) 

In  America  this  doctrine  was  carried  to  great  lengths.  If  one 
joint-owner  accused  his  partner  of  stealing  the  joint  property  no 
action  lay,  because  a  joint-owner  cannot  steal  the  joint  property. 
But  now  the  more  sensible  rule  prevails,  that  if  the  words  would 
convey  an  imputation  of  felony  to  the  minds  of  ordinary  hearers 
unversed  in  legal  technicalities,  an  action  lies,  e.  g.,  where  an  infant 
is  accused  of  a  crime,  and  nothing  said  about  special  malice. 
{Stewart  v.  Howe,  17  111.  71  ;  and  see  Chambers  v.  White,  2  Jones, 
383,  as  to  physical  inability  to  commit  the  crime  alleged.)  The 
words  are  actionable  if  they  are  calculated  to  induce  the  hearers 
to  suspect  that  the  plaintiff  had  committed  'a  crime.  {Drummpnd 
v.  Leslie,  5  Blackf.  (Indiana)  453.) 

Illustrations. 
Words  complained  of  :  — "  Thou  hast  killed  my  wife."    Everyone  who  heard 

(120) 


WORDS    IMPUTING    A    CONTAGIOUS    DISEASE.  49 

the  words  knew  at  the  time  that  defendant's  wife  was  still  alive  ;  they  could 
not  therefore  understand  the  word  "  kill  "  to  mean  "  murder  " 

Snag  v.  Gee,  4  Rep.    16,  as  explained  by  Parke,  B. ,  in  Heming  v. 
Power,  10  M.  &  W.  569. 

And  see  Web  v.  Poor,  Cro.  Eliz.  569. 

Talbot  v.  Case,  Cro.  Eliz.  823. 

Dacy  v.  Clinch,  Sid.  53. 

Jacob  v.  Milh,    1  Ventr.  117 ;  Cro.  Jac.  343. 
It  is  no  slander  to  say  of  a  churchwarden  that  he  stole  the  bell-ropes  of  his 
parish  church  ;  for  they  are  officially  his  property  ;  and  a  man  cannot  steal  his 
own  goods.     [But  such  words  might  be  actionable  as  a  charge  on  him  in  his 
office.] 

Jackson  v.  Adams,  2  Bing.  N.  C.  402;  2  Scott,  599  ;  1  Hodges,  339. 

[*64]  So  it  is  not  actionable  for  A. to  charge  a  man  who  is  not  A's  clerk  or  servant 

with  embezzling  A's  money  ;  for  no  indictment  for  embezzlement  would  lie. 

[But  surely  this  can  only  be  the  case  where  the  bystanders  are  aware  of  the 

exact  relationship  between  A.  and  the  plaintiff] 

Williams  v.  Stott,  1  C.  &  M.  675  ;  3  Tyrw.  688. 

But  where  a  married  women  said,  "  You  stole  my  faggots,"  and  it  was  argued 

for  the  defendant  that  a  married  woman  could  not  own  faggots,  and  therefore 

no  one  could  steal  faggots  of  hers  :  the  Court  construed  the  words  according  to 

common  sense  and  ordinary  usage  to  mean,  "  You  stole  my  husband's  faggots." 

Stamp  and   Wife  v.   White  and    Wife,  Cro.  Jac.  600. 

Charncl's  Case,  Cro,  Eliz.  279. 

When  the  charge  is  made  bond  fide  while  giving  the  plaintiff  into 
custody  or  prosecuting  him  according  to  law,  it  will  be  privileged  ; 
see  post,  c.  VIII.  pp.  221,  222. 


II.    Where  the  Wo?-ds  impute  a  Contagious  Disease. 

Words  imputing  to  the  plaintiff  that  he  has  an  infectious  or  con- 
tagious disease  are  actionable  without  proof  of  special  damage.  For 
the  effect  of  such  an  imputation  is  naturally  to  exclude  the  plaintiff 
from  society.  Such  disease  may  be  either  leprosy,  venereal  disease, 
or,  it  seems,  the  plague  (  Villers  v.  Monsley,  2  Wils.  403)  :  but  not 
the  itch,  the  falling  sickness,  or  the  small-pox,  which  the  judges 
apparently  considered  less  infectious.  The  words  must  distinctly 
impute  that  the  plaintiff  has  the  disease  at  the  time  of  publication  :: 
an  assertion  that  he  has  had  such  a  disease  would  not  cause  him. 
to  be  shunned.  (  Carslake  v.  Mapeldoram,  2  T.  R.  473  :  Taylor  v.. 
Hall,  2  Str.   1189.) 

Any  words  which  the  hearers  would  naturally  understand  as  con- 
veying that  the  plaintiff  then  has  such  a  disease  are  sufficient. 
Many  distinctions  ai-e  drawn  in  old  cases  about  the  pox,  a  word 
which  may  imply  either  the  actionable  syphilis,  or  the  less 
objectionable  small-pox.  It  has  been  decided  that  "  he  has  the 
p©x  "  (simpliciter)  shall  be  taken  to  mean  "  he  has  the  small-pox  ;." 
but  that  if  any  [*65]  other  words  be  used  referring  to  the  effects  of  the 
disease,  or  the  way  in  which  it  was  caught,  or  even  the  medicine 
taken  to  cure  it,  these  may  be  referred  to  as  determining  which  pox 
was   meant. 

Illustrations. 

To  say  of  a  person,  "He  hath  the  falling  sickness''  is  not  actionable  unless 
it  be  spoken  of  him  in  the  way  of  his  profession  or  trade. 

4  Lib.  &  Slan.  (121) 


50  DEFAMATORY    WORDS. 

Taylor  v.  Perr  (1607),  1  Rolle's  Abr.  44. 
To  say  to  the  plaintiff,  "  Thou  art  a  leprous  knave,"  is  actionable. 

Taylor  v.  Perkins  (1607),  Cro.  Jac.  144  ;  1  Rolle's  Abr.  44. 
To  say  of  the  plaintiff  that  "  He  hath  the  pox"  is  actionable,  whenever  the 
word  "  wench  "  or  "  whore  "  occurs  in  the  same  sentence. 
Brook  v.  Wise  (1001),  Cro.  Eliz.  878. 
Pye  v.   Wallis  (1658),  Carter  55. 
Grimes  v.  Lovel,  12  Mod.  242. 
W/ut  field  v.  Pmcel,  12  Mod.  248. 
Clifton  v.  Wells,  12  Mod.  634. 

Blood  worth  v.  Grey,  7  M.  &  Gr.  334 ;  8  Scott,  N.  R.  9. 
And  see  Clerk  v.  Dyer,  8  Mod.  290. 


III.  Words  which  are  spoken  of  the  Plaintiff  in  the  way  of  his 
Profession  or  Trade/  or  disparage  him  in  an  Office  of 
Public  Trust. 

Such  words  are  actionable  without  proof  of  any  special  damage. 
It  must  injure  the  plaintiff's  reputation  to  disparage  him  in  his 
very  means  of  livelihood.  Where  the  Court  sees  that  the  wrords 
spoken  affect  the  plaintiff  in  his  office,  profession,  or  trade,  and 
directly  tend  to  prejudice  him  therein,  they  ask  for  no  further 
proof  of  damage.  But  the  jury  must  be  satisfied  that  the  words 
were  spoken  of  the  plaintiff  in  relation  to  his  office,  profession,  and 
trade,  and  that  he  held  such  office,  or  was  actively  engaged  in 
such  profession  or  trade,  at  the  time  the  words  were  spoken  ; 
[*66]  if  not,  proof  of  special  damage  wrill  be  required.  (Bellamy 
v.  Burch,  16  M.  &  W.  590.) 

The  office  held  by  the  plaintiff  need  not  be  one  of  profit  ;  it  may 
be  merely  confidential  and  honorary,  as  that  of  a  justice  of  the 
peace.  The  gist  of  an  action  of  slander  is  the  injury  to  the  plain- 
tiff's reputation,  and  not  any  presumed  loss  of  money.  Hence  a 
justice  of  the  peace  can  recover  damages  for  a  slander  on  him  in 
his  office  ;  although  there  is  no  emolument  attached  to  it,  so  that 
his  removal  would  involve  no  pecuniar}'  loss.  So,  too,  a  physician 
or  a  barrister  may  sue  for  any  slander  imputing  professional  mis- 
conduct, although  in  contemplation  of  law  their  fees  are  mere 
gratuities. 

There  are  some  offices  and  professions  intermittent  in  their  nature 
though  annually  recurring.  A  revising  barrister  or  a  registration 
agent  is  generally  re-appointed  each  year.  I  apprehend  he  could 
sue  for  a  slander  of  him  in  such  capacity  although  uttered  after  his 
duties  for  the  year  were  over,  provided  such  words  wTould  seriously 
imperil  his  chance  of  being  re-appointed. 

The  plaintiff  must  always  aver  on  the  pleadings  that  he  was 
carrying  on  the  profession  or  trade,  or  holding  the  office,  at  the 
time  the  words  were  spoken.  Sometimes  this  is  admitted  by  the 
slander  itself,  and  if  so,  evidence  is  of  course  unnecessary  in  proof 
of  this  averment.  (  Yrisarri  v.  Clement,  2  C.  &  P.  223  ;  3  Bing. 
432.)  But  in  other  cases,  unless  it  is  admitted  on  the  pleadings, 
evidence  must  be  given  at  the  trial  of  the  special  character  in  which 
plaintiff  sues.     As  a  rule,  it  is  sufficient  for  plaintiff  to  prove  that 

(122) 


WORDS    CONCERNING    TRADERS,    ETC.  51 

he  was  acting  in  the  office  or  actively  engaged  in  the  profession  or 
trade  without  proving  any  appointment  thereto,  or  producing  a 
diploma  or  other  formal  qualification.  Omnia  premmuntur  rite 
esse  acta.  (Rutherford  v.  Evans,  4  C.  &  P.  79  ;  6  Bing.  451  ; 
Berryman  v.  Wise,  4  T.  R.  366  ;  Cannell  v.  Curtis,  2  Bing.  N.  C. 
228.)  That  he  so  acted  on  one  occasion  before  the  one  in  question 
is  evidence  to  go  to  the  jury.  (  R.  v.  Murphy,  8  C.  &  P.  297.)  But 
there  is  an  exception  to  this  rule  where  the  very  slander  complained 
of  imputes  to  a  medical  or  legal  practitioner  that  he  is  a  quack  or 
impostor,  not  legally  qualified  for  practice  :  here  the  plaintiff  must 
he  prepared  to  prove  his  qualification  strictly  by  producing  diplomas 
or  certificates  duly  sealed,  signed  and  stamped.  Collins  v.  Carnegie, 
3  N.  &  M.  703  ;  1  Ad.  &  E.  695  ;  Moises  v.  Thornton,  8  T.  R. 
303;    Wakley  v.  Ilealey  &  Cooke,  4  Exch.  53;  18  L.  J.  Ex.  426.) 

VVhether  or  no  the  words  were  spoken  of  the  plaintiff  in  the  way  of 
his  [*62]  business,  is  a  question  for  the  jury  to  determine  at  the 
trial.  (Per  Cockburn,  C.  J.,  in  Ramsdale  v.  Greenacre,  1  F.  &  F. 
61.)  There  should  always  be  an  averment  in  the  statement  of  claim 
that  the  words  were  so  spoken  ;  though,  where  the  words  are 
clearly  of  such  a  nature  as  necessarily  to  affect  the  plaintiff  in  his 
office  "or  business,  the  omission  of  such  an  averment  will  not  be 
fatal.  (Stanton  v.  Smith,  2  Ld.  Ravm.  1480;  2  Str.  762;  Jones 
v.  Littler,  7  M.  &  W.  423  ;  10  L.  J.  Ex.  171.) 

Illustrations. 

It  is  actionable  without  proof  of  special  damage  : — 
To  say  that  a  judge  gives  corrupt  sentences. 

Cce&ar  v.  Curseny,  Cro.  Eliz.  305. 
To  say  that  a  clergyman  had  been  guilty  of  gross  immorality  and  had  appro- 
priated the  sacrament  money. 

Highmore  v.  Earl  and  Countess  of  Harrington,  3  C.  15.  N.  S.  142. 
To  say  of  an  attorney  that  he  deserved  to  be  struck  off  the  roll. 

Phillips  v.  Jansen,  2  Esp.  G24. 

Warton  v.  Gearing,  1  Vict.  L.  R.  C.  L.  122. 
To  say  of  a  watchmaker,  "  he  is  a  bungler,  and  knows  not  how  to  make  a 
good  watch." 

Redman  v.  Pyne,  1  Mod.  19. 
To  in  any  way  impute  insolvency  or  bankruptcy  to  any  merchant  or  trader. 

Arne  v.  Johnson,  10  Mod.  111. 

Davis  v.  Lewis,  7  T.  R.  17. 

But  it  by  no  means  follows  that  any  words  spoken  to  the  dis- 
paragement of  an  officer,  professional  man,  or  trader,  will  ipso 
facto  he  actionable  per  se.  Words  to  be  actionable  on  this  ground, 
'"  must  touch  the  plaintiff  in  his  office,  profession  or  trade  : "  that 
is,  they  must  be  shown  to  have  been  spoken  of  the  plaintiff  in  rela- 
tion thereto,  and  to  be  such  as  would  prejudice  him  therein.  They 
must  impeach  either  his  skill  or  knowledge,  or  his  official  or  pro- 
fessional conduct.  It  is  true  that  his  special  office  or  situation  need 
not  be  expressly  referred  to,  if  the  charge  made  be  such  as  must 
necessarily  affect  it.  And  in  determining  whether  the  words  used 
would  necessarily  affect  the  plaintiff  in  his  office,  profession  or 
trade,  regard  must  be  had  to  the  rank  and  position  of  the  plaintiff, 
and  to  the  mental  and  moral  requirements  of  the  office  he  holds. 

(123) 


52  DEFAMATORY    WOUDS. 

Words  may  be  actionable  [*68j  if  spoken  of  a  clergyman  or  a  bar- 
rister, which  would  not  be  actionable  of  a  trader  or  a  clerk. 

Thus,  where  integrity  and  ability  are  essential  to  the  due  con- 
duct of  plaintiff's  office,  words  impugning  the  integrity  or  ability 
of  the  plaintiff  are  clearly  actionable  without  any  express  mention 
of  that  office  ;  for  they  distinctly  imply  that  he  is  unfit  to  continue 
therein.  But  where  the  plaintiff  does  not  hold  any  situation  of 
trust  or  confidence,  words  which  mei'ely  convey  a  general  imputa- 
tion of  immorality,  or  charge  him  with  some  misconduct  not  con- 
nected with  his  special  profession   or  trade,  will  not  be   actionable. 

Illustration  x. 

To  impute  immorality  or  adultery  to  a  beneficed  clergyman  is  actionable  ;  for 
it  is  ground  of  deprivation. 

Gallwey  v.    Marshall,  9  Exch.  294  ;  23  L.  J.  Ex.  78  ;  2  C.  L.  R.  399. 
Not  so  in  the  case  of  a  physician. 

Ayre  v.  Craven,  2  A.  &  E.  2  ;  4  Nov.  &  M.  220. 
Or  a  staymaker. 

Bray ne  v.  Cooper,  5  M.  &  W.  249. 
Or  a  clerk  to  a  gas  company. 

Lumby  v.  Allday,  1  C.  &  J.  30t  ;  1  Tyrw.  217. 
To  say  of  a  superintendent  of  police  that  "he  has  been  guilty  of  conduct 
unfit  for  publication  "  is  not  actionable,  unless  the  words  were  spoken  of  him 
with  reference  to  his  office. 

'    James  v.  Brook,  9  Q.  B.  7  ;  16  L.  J.  Q.  B.  17  ;  10  Jur.  541. 
It  is  actionable  to  impute  habitual  drunkenness  lo  a  beneficed  clergyman. 
Bod  v.  Robinson,  Al.  63. 
McMillan  v.  Birch,  1  Binn.  178. 
Or  to  a  master  mariner  in  command  of  a  vessel. 

Irwin  v.  Brand, rood,  2  H.  &  C.  960;  33  L.  J.  Ex.  257;  9  L.  T. 

772  ;  10  Jur.  N.  S.  370  ;  12  W.  R.  438. 
Hainan  v.  Falle,  4  App.  Cas.  247  ;  48  L.  J.  P.  C.  45. 
Or  to  a  schoolmaster. 

Hume  v.  Marshall,  42  J.  P.  136. 
Brandrick  v.  Johnson,  1  Vict,  L.  R.  C.  L.  306. 
It  would  not  be  actionable  where  sobriety  was  not  an  essential  qualification 
for  the  post.     And  to  state  that  a  clergyman  or  a  schoolmaster  was  drunk  on 
one  particular  occasion,  and  that  neither  in  church  nor  in  school,  would  not  be 
actionable  ;  as  that  alone  would  not  necessitate  his  removal  from  his  office. 
Anon.,  1  Ohio,  83,  n. 

Tighe  v.   Wicks,  33  Up.  Can.  Q.  B.  Rep.  470. 
Brandrick  v.  Johnson,  1  Vict.  L.  R.  C.  L.  306. 
[*69]  To  state  that  a  head-fireman  was  drunk  at  a  fire  is  actionable. 

Gottbehuet  v.  Hubachek,  36  Wisconsin,  515. 
But  to  say  that  a  private  citizen  was  drunk  once  is  not. 
Warren  v.  Norman,  Walk.  (Mississippi)  387. 
Buck  v.  Hcrsey,  31  Maine,  558. 
And  see  ('haddock  v.  Briggs,  13  Mass.  248. 
Hayner  v.  Cowden,  27  Ohio  St.  292. 
To  say  of  an  attorney  that  "  he  hath  the  falling  sickness  "  is  actionable  with- 
out special  damage,  because  that  disables  him  in  his  profession. 
Taylor  v.  Perr  (1607),  1  Roll.  Abr.  44. 
But  it  is  not  actionable  to  say  of  an  attorney  "  He  has  defrauded  his  creditors, 
and  has  been  horsewhipped  off  the  course  at  Doncaster  ;  "  for  it  is  no  part  of 
his  professional  duties  to  attend  horse-races. 

Doyley  v.  Roberts,  3  Bing.  N.  C.  835  ;  5  Scott,  40  ;  3  Hodges,  154. 
To  say  of  a  livery-stable-keeper:  "You  are  a  regular  prover  under  bank- 
ruptcies, a  regular  bankrupt  maker,"  is  not  actionable  ;  for  it  is  not  a  charge 
against  him  in  the  way  of  his  trade. 

(124)      • 


WORDS    CONCERNING    TRADERS,    ETC.  58 

Angle  v.  Alexander,  7Bing,  119 ;  1  Cr.  &  J.  143  ;  4  M.  &  P  870  ;  1 
Tyrw.  9. 
But  it  is  actionable,   without  proof    of  special    damage,  to  say  of  a  game- 
keeper that  "  he  trapped  three  foxes;"  for  that  would  be  misconduct  in  a 
gamekeeper. 

Foulger  v.  Newcomb,   L.  R.  2  Ex.  327  ;  36  L.  J.  Ex.  169  ;  15  W.  R. 
1181  ;  16  L.  T.  595. 
So  to  say  of  an  auctioneer,  "  You  are  a  deceitful  rascal,  a  villain,  and  a  liar. 
I  would  not  trust  you  with  an  auctioneer's  licence.     You  robbed  a  man  you 
called  your  friend  ;  and,  not  satisfied  with  10Z.,  you  robbed  him  of  20^.  a  fort- 
night ago,"  was  held  actionable  by  Cockburn,  0.  J.,  in 
Ramsdale  v.  Greenacre,  1  F.  &  F.  61. 
And  see  Bryant  v.  Loxton,  11  Moore,  344. 
But  to  say  of  a  land  speculator,  "  He  cheated  me  of  100  acres  of  land,"  was 
held  in  Canada  not  to  touch  him  in  his  trade  and  therefore  not  actionable. 
Fellowes  v.  Hunter,  20  Up.  Can.  Q.  B.  382. 
See  Sibley  v.  Tomlins,  4  Tyrw.  90,  post,  p.  82. 
To  call  a  dancing  mistress  "an  hermaphrodite"  is  not  actionable  ;  for  girls 
are  taught  dancing  by  men  as  often  as  by  women. 

Wetherhead  v.  Armitage,  2  Lev.  233  ;  3  Salk.  328  ;  Freem.  277  ;  2 

Show.  18. 
Seats,  in  America,  Malone  v.  Stewart,  15  Ohio,  319. 
To  say  of  the  keeper  of  a  restaurant,  "  You  are  an  infernal  rogue  and 
swindler,"  was  held  not  to  be  actionable  without  proof  of  speeial  damage,  as 
not  of  itself  necessarily  injurious  to  a  restaurant  keeper  for,  as  the  Supreme 
Court  of  Victoria  remarked,  "  in  fact  there  might  be  very  successful  restaurant 
keepers,  who  were  both  rogues  and  swindlers." 

Brady  v.  Youlden,  Kerferd  &  Box's  Digest  of  Victoria  Cases,  709  ; 
Melbourne  Argus  Reports,  6th  September,  1867. 
So  to  call  a  carpenter  "  a  rogue,"  or  a  cooper  "a  varlet  and  a  knave,"  is  clearly 
not  actionable  per  se  ;  for  the  words  do  not  touch  them  in  their  trades. 
Lancaster  v.    French,  2  Str.  797. 
Cotes  v.  Ketle,  Cro.  Jac.  204. 
[*70]  A  declaration  alleged  that  the  defendant  falsely  and  maliciously  spoke 
of  the  plaintiff,  a  working  stone-mason,    "  He  was  the  ringleader  of  the  nine 
hours' system,"  and  "  He  has  ruined  the  town  by  bringing  about  the  nine  hours' 
system,"  and  "  He  has  stopped  several  good  jobs  from  being  carried  out,  by 
being  the  ringleader  of  the  system,  at  Llanelly,"  whereby  the  plaintiff  was 
prevented  from  obtaining    employment  in  his    trade    at   Llanelly  :  Held,    on 
demurrer,  that,   the  words  not  being  in  themselves  defamatory,  nor  connected 
by  averment  or  by  implication  with  the  plaintiff's  trade,  and  the  alleged  damage 
not  being  the  natural  or  reasonable  consequence  of  the  speaking  of  them,  the 
action  could  not  be  sustained. 

Miller  v.  David,  L.  R.  9  C.  P.  118  ;  43  L.  J.   C.  P.   84  ;  22  W.  R. 
332  ;  30  L.  T.  58. 

Again,  where  a  special  kind  of  knowledge  is  essential  to  the 
proper  conduct  of  a  particular  profession,  denying  that  the  plaintiff 
possesses  such  special  knowledge  will  be  actionable,  if  the  plaintiff 
belongs  to  that  particular  profession,  but  not  otherwise. 

4 

Illustrations. 

It  has  been  held  actionable  without  special  damage  : — 
To  say  of  a  barrister,  "  He  is  a  dunce,  and  will  get  little  by  the  law  "  [though 
here  it  was  argued  for  the  defendant  that  Duns  Scotus  was  ' '  a  great  learned 
man  ;  "  that  though  to  call  a  man  "  a  dunce  "  might  in  ordinary  parlance  imply 
that  he  was  dull  and  heavy  of  wit,  yet  it  did  not  deny  him  a  solid  judgment  ; 
and  that  to  say  "  he  will  get  little  by  the  law  "  might  only  mean  that  he  did  not 
wish  to  practise]. 

Peard  v.  Jones  (1635),  Cro-.  Car.  382. 

(125) 


54  DEFAMATORY    WORDS. 

To  say  of  an  attorney,  "  He  has  no  more  law  than  Master  Cheyny's  bull,"  or 
"  He  has  no  more  law  than  a  goose." 

Baker  v.  Moi'fue,  vel  Morphew,  Sid.  827  ;  2  Keble,  202. 
[According  to  the  report  in  Keble,  an  objection  was  taken  in  this  case  on 
behalf  of  the  defendant,  that  it  was  not  averred  in  the  declaration,  "  that  Cheyny 
had  a  hull,  sed  non  allocatur,  for  the  scandal  is  the  greater,  if  he  had  none." 
And  the  Court  adds  a  solemn  quatre  as  to  saying  "  He  has  no  more  law  than 
the  man  in  the  moon,"  feeling  no  doubt  a  difficulty  as  to  ascertaining  the  precise 
extent  of  that  individual's  legal  acquirements.  But  see  Day  v.  Butler,  3  Wils. 
59  post,  p.  76,  where  the  Court  strangely  decides  that  it  is  defamatory  to  say  of 
an  attorney  that  "  he  is  no  more  a  lawyer  than  the  devil  !  "] 
To  say  of  an  attorney,  "  He  can't  read  a  declaration." 

Powell  v.  Jones,  1  Lev.  297. 
To  say  of  a  physician  that  "  he  is  no  scholar,"  "  because  no  man  can  be  a 
good  physician,  unless  he  be  a  scholar." 

Cawdrey  v.  Hicjhlcy,  al.  Tythay,  Cro.  Car.  270  ;  Godb.  441. 
[*  71]     To  say  of  the  deputy  of  Clarencieux,  king-at-arms,  "  He  is  a  scrivener 
and  no  herald." 

Brooke  v.  Clarke,  Cro.  Eliz.  328  ;  1  Vin.  Abr.  464. 
To  charge  any  public  officer  falsely  with  gross  ignorance  of  his  duties  is 
actionable  per  se  in  America. 

Spiering  v.  Andrae,  45  Wisconsin,  330. 
To  say  of  a  midwife,  "  Many  have  perished  for  her  want  of  skill." 

Flowers'  Case,  Cro.  Car.  211. 
To  charge  an  apothecary  with  having  caused  the  death  of  a  child  by  adminis- 
tering to  it  improper  medicines. 

Edsall  v.  Russell,  4  M.  &  Gr.  1090  ;  5  Scott,  N.  R.  801 ;  2  Dowl.  N.  S. 
•       641  ;  12  L.  J.  C.  P.  4  ;  6  Jur.  996. 
Tutty  v.  Alewin,  11  Mod.  221. 
Where  an  architect  is  engaged  to  execute  certain  work, -it  is  a  libel  upon  him 
in  the  way  of  his  profession  to  write  to  his  employers  asserting  that  he  has  no 
experience  in  that  particular  kind  of  work,  and  is  therefore  unfit  to  be  entrusted 
with  it. 

Botterill  and  another  v.  Whytehead,  41  L.  T.  588.  . 
But  since  no  special  learning  or  ability  is  expected  of  a  justice  of  the  peace, 
it  is  not  actionable  to  call  him  a  "  fool,"  "  ass,"  "blockhead,"  or  any  other  words 
merely  imputing  want  of  natural  cleverness  or  ignorance  of  law.  But  words 
which  impute  to  him  corruption,  dishonesty,  extortion,  or  sedition  are  actionable 
of  course. 

Bill  v.  Neal,  1  Lev.  52. 

How  v.  Prin,  Holt,  652  ;  2  Salk.  694  ;    2  Ld.  Raym.   812  ;  7  Mod. 

107  ;  1  Bro.  Pail.  C.  64. 
Aston  v.  Blagrave,  1  Str.  617  ;  8  Mod.  270  ;  Fort.  208  ;  2  Ld.  Raym. 
1369. 

It  will  be  well  to  deal  more  particularly  with  certain  special 
offices  and  professions. 

Persons  holding  any  Office  of  Confidence  and  Trust. 

Words  which  impute  a  want  of  integrity  to  any  one  holding  an 
office  of  confidence  or  trust,  whether  an  office  of  profit  or  not,  are 
clearly  actionable  per  se.  So  if  the  words  employed  have  a  natural 
tendency  to  cause  the  plaintiff  to  be  removed  from  his  office,  as  by 
imputing  insufficiency  or  gross  incompetency,  or  habitual  neg- 
ligence of  his  duties.  But  where  the  words  merely  impute  want  of 
ability,  without  ascribing  to  the  plaintiff  any  wicked  or  dishonest 
conduct  ;  there  no  action  lies,  at  all  events,  where  the  office  is 
honorary,  as  in  the  case  of  a  sheriff  or  a  justice  of  the  peace.     (Per 

(126) 


WORDS    CONCERNING    PERSONS    IN    OFFICE.  55 

Holt,  C.  J.,  in  How  v.  Prin,  Holt,  653  ;  2  Salk.  694  ;  and  compare 
B.  v.  Darby,  3  Mod.  136,  with  Protr.se  v.  Wilcox,  id.  163.) 

As  the  danger  of  plaintiff's  losing  his  office  is  the  gist  of  the 
action,  it  is  essential  that  plaintiff  should  hold  the  office  at  the  time 
the  words  [*  72 J  were  spoken.  (Per  De  Grey,  C.  J.,  in  Onslow  v. 
Home,  3  Wils.  188  ;  2  W.  131.  753,  overruling  the  dictum  of  Pol- 
lexfen,  C.  J.,  in  Walden  v.  Mitchell,  2  Vent.  266.) 

Illustrations. 

It  is  actionable  without  proof  of  special  damage  :— 
To  accuse  a  Royal  Commissioner  of  taking  bribes. 
Moor  v.  Foster,  Cro.  Jac.  65. 
Purely  v.  Stacey,  5  Burr.  2698. 
To  say  of  a  justice  of  the  peace,  "  Mr.  Stuckley  covereth  and  hideth  felonies, 
and  is  not  worthy  to  be  a  justice  of  the  peace  ; "  "for  it  is  against  his  oath  and 
the  office  of  a  justice  of  peace,  and  a  good  cause  to  put  him  out  of  the  com- 
mission." 

Stuckley  v.  Billhead,  4  Rep.  16. 
And  see  Sir  John  Harper  v.  Beamond,  Cro.  Jac.  56. 
Sir  Miles  Fleetwood  v.  Curl,  Cro.  Jac.  557  ;  Hob.  268. 
To  say  of  a  justice  of  the  peace  that  "  he  is  a  Jacobite  and  for  bringing  in  the 
Prince  of  Wales  and  Popery  ; "  for  this  implies  that  he  is  disaffected  to  the 
established  Government  and  should  be  removed  from  office  immediately. 

How  v.   Prin,  (1702),   Holt,   652  ;    7  Mod.   107  ;    2  Ld.  Raym.  812  ; 
2  Salk.  694      Affirmed  in  House  of  Lords  sub  nam.  Prinne  v.  Howe, 
1  Brown's  Parly.  Cases,  64. 
To  insinuate  that  a  justice  of  the  peace  takes  bribes  or  ' '  perverts  justice  to 
serve  his  own  turn." 

Ceesar  v.  Curseny,  Cro.  Eliz.  305. 

Cam  v.  Osgood,  1  Lev.  280. 

Alleston  v.  Moor,  Hetl.  167. 

Masham  v.  Bridges,  Cro.  Car.  223. 

Isham  v.  York,  Cro.  Car.  15. 

Beamond  v.  Hastings,  Cro.  Jac.  240. 

Aston  v.  Blagrave,   1  Str.   617  ;    8  Mod.  270  ;    2  Ld.  Raym.  1369  ; 

Fort.  206. 
Lindsey  v.  Smith,  7  Johns.  359. 
To  say  to  a  churchwarden,  "Thou  art  a  cheating  knave  and  hast  cheated  the 
parish  of  £40." 

Strode  v.  Holmes  (1651),  Styles,  838  ;  1  Roll.  Abr.  58. 
Woodruff  v.   Wooley,  1  Vin.  Abr.  463. 

Jackson  v.  Adams,  2  Bing.  N.  C.  402 ;  2  Scott,  599  ;  1  Hodges,  339. 
To  call  an  escheator,  attorney,  or  other  officer  of  a  Court  of  Record,  an 
"  extortioner." 

Stanley  v.  Boswell,  1  Roll.  Abr.  55. 
To  say  of  a  town-clerk  that  he  hath  not  performed  his  office  according  to  law. 
Fowell  v.  Cowe,  Rolle's  Abr.  56. 
Wright  v.  Moorhouse,  Cro.  Eliz.  358. 
Or  that  he  destroyed  votes  at  an  election. 

Dodds  v.  Henry,  9  Mass.  262. 
To  say  of  a  constable,  "  He  is  not  worthy  the  office  of  constable." 

Taylor  v.  How,  Cro.  Eliz.  861  ;  1  Vin  Abr.  464. 
[*73]  In  America  it  has  been  held  actionable  to  charge  a  member  of  a  nomin- 
ating convention  of  a  political  party  with  having  been  influenced  by  a  bribe. 
Hand  v.  Winton,  38  N.  Y.  122. 
And  see  Sanderson  v.  Caldwell,  45  N.  Y.  398. 
JJolloway  v.  Turrell,  26  Wend.  (N.  Y.)  383. 
Stone  v.  Cooper,  2  Denio  (N.  Y.)  193. 
Hand  v.  Winton,  9  Vroom,  122. 
So,  too,  in  Canada,  where  the  plaintiff  was  charged  with  being  a  public  robber 

(127) 


56  DEFAMATORY    WORDS. 

—innuendo,  that  lie,  plaintiff,  had  defrauded   the   public  in  his  dealings  with 
them  ;  it  was  held  not  necessary  for  plaintiff  to   aver  that   he    is  in  any  office, 
trade,  or  employment  in  which  he  could  have  defrauded  the  public. 
Taylor  v.  Carr.,  3  Up.  Can.  Q.  B.  Rep.  306. 
But  it  is  not  actionable  without  proof  of  special  damage  : — 
To  impute  insincerity  to  a  member  of  Parliament. 

Onslow  v.  Home,  3  Wils.  177  ;  2  \Y.  Bl.  750. 
Or  weakness  of  understanding  to  a  candidate  for  Congress. 

Mayrant  v.  Richardson,  1  Nott  &  M.  347. 
Or  to  call  such  a  candidate  "  a  corrupted  old  Tory." 

Hogg  v.  Dorrah,  2  Post.  (Alabama),  212. 
To  say  of  a  justice  of  the  peace,  "  lie  is  a  fool,  an  ass,  and  a  beetle-headed 
justice  ;  "  for  these  arc  but  general  terms  of  abuse  and  disclose   no  ground  for 
removing  the  plaintiff  from  office. 

Bill  v.  Neal,  1  Lev.  52. 

Sir  John  Hollis  v.  Briscow  ct  ux.,  Cro.  Jac.  58. 
To  say  of  a  justice  of  the  peace,    "He  is  a  logger-headed,  a  slouch-headed, 
bursen-bellied  hound." 

B.  v.  Farre,  1  Keb.  629. 
To  say  of  a  justice  of  the  peace,  "    He  is  a  blood-sucker  and  sucketh  blood  :  " 
"  for  it  cannot  be  intended  what  blood  he  sucketh." 

Sir  Christopher  Hilliard  v.  Constable,  Cro.  Eliz.  306  ;  Moore,  418. 

Clergymen  and  Jlinisters. 

Words  are  actionable  if  spoken  of  a  beneficed  clergyman  which 
would  not  be  actionable  if  spoken  of  one  without  cure  of  souls. 
(  Gallwey  v.  Marshall,  9  Ex.  294  ;  23  L.  J.  Ex.  78  ;  2  C.  L.  R.  399.) 
But  it  does  not  follow  that  all  words  which  tend  to  being  a  beneficed 
clergyman  into  disrepute,  or  which  merely  impute  that  he  has  done 
something  wrong,  are  actionable  without  special  damage.  The  rea- 
son always  assigned  for  this  distinction  between  beneficed  clergy- 
men and  others  is  that  the  charge,  if  true,  would  be  ground  of  degra- 
dation or  deprivation.  (Drake  v.  JDmke,  1  Roll.  Abr.  58  ;  Dod  v. 
Robinson  (1648),  Aleyn,  63  ;  Pemberton  v.  Colls,  10  Q.  B.  461  ;  16 
L.  J.  Q.  B.  403  ;  11  Jur.  1011.)  The  imputation  must  therefore  be 
such  as,  if  true,  would  tend  to  prove  the  plaintiff  unfit  to  continue 
in  his  office,  and  therefore  tend  more  or  less  directly  to  proceedings 
being  taken  [*74]  by  the  bishop.  If  the  plaintiff  holds  any  chaplaincy, 
lectureship,  or  readership,  from  which  he  might  be  removed,  he  will 
come  within  the  same  rules  as  a  beneficed  clergyman.  (Payne  v. 
Beuwmorris,  1  Lev.  248.)  But  a  clergyman  without  any  preferment 
or  office  stands  on  the  same  footing  as  a  dissenting  minister,  and 
must  prove  that  some  pecuniary  damage  has  followed  from  the 
speaking  of  the  words.     (See  Hartley  v.  Herring,  8  T.  R.  130.) 

Illustrations. 

It  is  actionable  without  proof  of  special  damage — 
To  say  of  a  parson  that  "he  had  two  wives  ;  "  for  though  bigamy  was  not 
made  felony  till  1003.  still  in  15WS  it  was  "cause  of  deprivation." 
Niclwlson  v.  Lyne,  Cro.  Eliz.  94. 
To  say  that  "  he  is  a  drunkard,  a  whoremaster,  a  common  swearer,  a  common 
liar,  and  hath  preached  false  doctrine,  and  deserves  to  be  degraded  ;  "  for  "  the 
matters  charged  are  good  cause  to  have  him  degraded,  whereby  he  should  lose 
his  freehold." 

Dod  v.  Robinson,  (1648),  Aleyn,  63- 
Dr.  Sibthorpe's  Case,  W.  Jones,  366  ;  1  Roll.  Abr.  76. 
(128) 


WORDS    CONCERNING    BARRISTERS-AT-l.AW.  57 

To  say  "lie  preacheth  Ives  in  (he  pulpit;  "  "car  ceoest  ban  cause  do  deprivation." 

Drake  v.  Brake  (1652),  1  Roll.  Abr.  58;  1  Vin.  Abr.  473. 
[  These  cases  clearly  overrule  Parrel  v.  Carpenter,  Noy,  64  ;  Cro  Eliz.  502, 
wherein  it  was  held  that  an  action  could  lie  only  in  the  spiritual  court  for  saying 
of  a  parson  : — "  Parret  is  an  adulterer,  and  hath  had  two  children  by  the  wife 
of  J.  S.,  and  I  will  cause  him  to  be  depr'ved  for  it."  See  the  remarks  of 
Pollock,  C.  B.,  23  L.  J.  Ex.  80  ] 

To  say  to  a  parson,  "Thou  hast  made  a  seditious  sermon,  and  moved  the 
people  to  sedition  to-day." 

Philips,  B.  B.  v.  Badby  (1582),  cited  in  Bittridge's  Case,  4  Rep.  19. 
To  say  of  a  parson,  "  He  preaches  nothing  but  lies  and  malice  in  the  pulpit  ;  " 
for  the  words  are  clearly  spoken  of  him  in  the  way  of  his  profession. 
Crauden  v.   Walden,  3  Lev.  17. 
Bishop  ofSarum  v.  Nash,  B.  N.  P.  9 ;  Willes,  23. 
And  see  Pocock  v.  IS  ash,  Comb.  253. 
Musgrave  v.  Bovey,  2  Str.  946. 
To  say  to  a  clergyman,  "  Thou  art  a  drunkard,"   is  not  of  itself  actionable; 
but  it  is  submitted  that   to  impute  to  a  clergyman   habitual  drunkenness,  or 
drunkenness  whilst  engaged  in  the  discharge  of  his  official  duties,  would  be 
actionable. 

Cucks  v.  Starre,  Cro.  Car.  285. 
Tighe  v.  Wicks,  33  Upper  Canada,  Q  B.  Rep.  470. 
To  charge  a  clergyman  with  immorality  and  misappropriation  of  the  sacra- 
ment money  is  clearly  actionable.     Damages  £750. 

Highmore  v.  Earl  and  Countess  of  Harrington,  3  C.  B.  N.  S.  142. 
And,  of    course,  to  charge  a  clergyman  with  having  indecently  assaulted  a 
woman  on  the  highway  is  actionable. 

Evans  v.  Gwyn,  5  Q.  B.  844. 
[*75]  To  say  of  a  beneficed  clergyman  that  he  drugged  the  wine  he  gave  the 
speaker,  and  so  fraudulently  induced  him  to  sign  a  bill  of  exchange  for  a  large 
amount,  is  actionable  without  proof  of  special  damage;  but  it  is  not  actionable 
merely  to  say  of  a  beneficed  clergvman,  "  He  pigeoned  me." 

Pemberton  v.  Colls,  10  Q.  B.  461  ;  16  L.  J.  Q.  B.  403  ;  11  Jur.  1011. 
To  charge  a  clergyman  with  incontinence  is  not  actionable,  unless  he  hold 
some  benefice  or  preferment,  or  some  post  of  emolument,  such  as  preacher, 
curate,  chaplain,  or  lecturer. 

Gallwey  v.  Marshall,  9  Exch.  294;  23  L.  J.  Ex.  78  ;  2  C.  L.  R.  399. 
To  say  of  one  who  had  been  a  linendraper,  but  at  time  of  publication  was  a 
dissenting  minister,  that  he  was  guilty  of  fraud  and   cheating  when  a  linen- 
draper,  is  no  slander  of  the  plaintiff  in  his  office  of  dissenting  minister. 

Hopwwood  v.  Thorn,  8  C.  B.  293  ;  19  L.  J.  C.  P.  94  ;  14  Jur.  87. 
To  say  of  a  bishop  that  "  he  is  a  wicked  man,"  is  actionable  without  special 
damage.     Per  Scroggs,  J.,  in  Tounshendv.  Br.  Hughes,  2  Mod.  160.     But  this  is 
only  because  the  Statute  of  Scandalum  Magnatum,  2  Rich.  II.  st.  1.  c.  5,  express- 
ly mentions  "  prelates."    See  post,  p.  135,  and  note  to  10  Q.  B.  p.  469. 

Barristers-at-  Law. 

It  is  quite  clear  that  barristers  and  physicians  may  sue  for  words 
touching  them  in  their  profession,  although  their  fees  are  honorary. 
The  loss  of  a  gratuity  is  special  damage:  see^os^,  c.  X.  p.  300. 

Illustrations. 

The  plaintiff  was  a  barrister  and  gave  counsel  to  divers  of  the  king's  subjects. 
The  defendant  said  to  J.  S.  [the  plaintiff's  father-in-law],  concerning  the  plain- 
tiff, "  He  is  a  dunce,  and  will  get  little  by  the  law."  J.  S.  replied,  "  Others 
have  a  better  opinion  of  him."  The  defendant  answered,  "  He  was  never  but 
accounted  a  dunce  in  the  Middle  Temple."  Held,  that  the  words  were  action- 
able, though  no  special  damage  was  alleged.     Damages,  one  hundred  marks. 

Peard  v.  Jones,  Cro.  Car.  382. 
So  it  is  actionable  to  say  of  a  barrister — 

(129) 


58  DEFAMATORY    WORDS. 

"Thou  art  no  lawyer;    thou  canst  not  make  a   lease;  thou  hast  that  degree 
without  desert  ;  they  are  fools  who  come  to  thee  for  law." 
Bankea  v.  Allen,  1  Roll.  Abr.  54. 
Or,   "  He  hath  as  much  law  as  a  Jackanapes."  (N.   B. — The   words  are  not 
"  no  more  law  than  a  Jackanapes.") 

Palmer  v.  Boyer,  Owen,  17  ;  Cro.   Eliz.  342,  cited  with  approval  in 

Brake's  Case,  Moore,  409. 
[And  see  Caicdrey  v.  Tetley,  Godb.  441,  where  it  is  said  that  had  the 
words  been,    "  He  has  no  more  wit  than  a  Jackanapes,"  no  action 
would  have  lain  ;  wit  not  being  essential  to  success  at   the  bar, 
according  to  F.  Pollock,  2  Ad.  &  E.  4.] 
Or,  "  He  has  deceived  his  client,  and  revealed  the  secrets  of  his  cause." 

Snag  v.  Gray,  1  Roll.  Abr.  57  ;  Co.  Entr.  22. 
[*76]  Or,  "  He  will  give  vexatious  and  ill  counsel,  and  stir  up  a  suit  and  milk 
her  purse,  and  till  his  own  large  pockets." 

King  v.  Lake,  2  Ventr.  28  ;  Hardres,  470. 

Solicitors  and  Attomies. 

R  is  actionable  without  special  damage  : — 
To  say  of  an  attorney,   "  He  is  a  very  base  rogue  and  a  cheating]  knave,  and 
doth  maintain  himself,  his  wife  and  children,  by  his  cheating." 
Anon.  (1638),  Cro.  Car.  516. 
See  Jenkins  v.  Smith,  Cro.  Jac.  586. 
To  say  of  an  attorney  that  "he  hath  the  falling  sickness  ;  "  for  that  disables 
him  in  his  profession. 

,    Taylor  v.  Perr  (1607),  1  Rolle's  Abr.  44. 
To  say  of  an  attorney,   "  What,  does  he  pretend  to  be  a  lawyer  ?     He  is  no 
more  a  lawyer  than  the  devil  ;  "  or  any  other  words  imputing  gross  ignorance  of 
law. 

Bay  v.  Butter,  3  Wils.  59. 

Baker  v.  Morfue,  Sid.  327;  2  Keb.  202  ;  ante,  p.  70. 
Powell  v.  Jones,  1  Lev.  297,  ante,  p.  70. 
To  say  of  an  attorney,  "  He  is  only  an  attorney's  clerk,  and  a  rogue  ;  he  is  no 
attorney,"  or  any  words  imputing  that  he  is  not  a  fully  qualified  practitioner. 
ITardmick  v.    Chandler,  2  Stra.  1138. 
To  say  of  an  attorney,  "  He  is  an  ambidexter,"  i.e.,  one  who  being  retained 
by  one  party  in  a  cause,  and  having  learnt  all  his  secrets,  goes  over  to  the  other 
side,  and  acts  for  the  adversary.     Such  conduct  was  subject  for  a  qui  tarn  action 
under  an  old  penal  statue  :  see  Rastell's  Entries,  p.  2,  Action  sur  le  case  vers 
Attorney,  3. 

A  unison  v.  Blofield,  Carter,  214  ;  1  Roll.  Abr.  55. 
Shire  v.  King,  Yelv.  32. 
To  impute   that  he  will  betray  his  clients'  secrets  and  overthrow  their  cause. 
Martyn  v.  Burlings,  Cro,  Eliz.  589. 
Garry.  Seidell,  6Barb.  (N.  Y.),  416  ;  4  Comst.  91. 
Foot  v.  Brown,  8  Johns.  64. 
To  charge  an  attorney  with  barratry,  champerty,  or  maintenance. 
Boxe  v.  Bamahy,  1  Roll.  Abr.  55  ;  Hob.  117. 
Proud  v.  Hawes,  Cro.  Eliz.  171  ;  Hob.  140. 
Taylor  v.  Starkey,  Cro.  Car.  192. 
To  say  to  a  client  "  your  attorney  is  a  bribing  knave,  and  hath  taken  twenty 
pounds  of  you  to  cozen  me." 

Yardley  v.  Ellis,  Hob.  8. 
To  say  of  an  attorney,  "  He  stirred  up  suits,  and   once  promised  me,  that  if 
he  did  not  recover  in  a  cause  for  me,  he  would  take  no  charges  of  me  ;  "  "  be- 
cause stirring  up  suits  is  barratry,  and  undertaking  a  suit,  no  purchase  no  pay, 
is  maintenance." 

Smith  v.   Andrews,  1  Roll.  Abr.  54  ;  Hob.  117. 
To  assert  that  an  attorney  has  been  guilty   of  professional   misconduct  and 
ought  to  be  struck  off    the  rolls. 

Byrchley's  Case,  4  Rep.  16. 

(130) 


•WORDS    CONCERNING    PHYSICIANS    AND    SURGEONS.  50 

Phillips  v.  Jansen,  2  Esp.  624. 

Wartin  v.  Gearing,  1  Vict.  L.  It.  C.  L.  122. 
[*  77]  But  it  is  not  actionable  to  say  of  an  attorney,  "  lie  has  defrauded  his 
creditors  and  lias  been  horse-whipped  off  the  course  at  Doncaster  ;  "  for  it  is  no 
part  of  his  professional  duties  to  attend  horse-races,  and  his  creditors  are  not  his 
clients. 

Doyley  v.  Roberts,  3  Bing.  N.  C.  835  ;  5  Scott,  40  ;  3  Hodges,  154. 
Nor  to  abuse  him  in  general  terms,  such  as  "  cheat,"  "  rogue,"  or  "  knave  ;" 
though  to  say,  "  You  cheat  your  clients,"  would  be  actionable. 

Alleston  v.  Moor,  Het.  167. 

And  see  Bishop  v.  Latimer,  4  L.  T.  775. 

Physicians    and  Surgeons. 

Any  words  imputing  to  a  practising  medical  man  misconduct  or 
incapacity  in  the  discharge  of  his  professional  duties  are  actionable 
per  se. 

Illustrations. 

Thus  it  is  actionable  without  proof  of  special  damage  : — 
To   accuse   any   physician,    surgeon,    accoucheur,   midwife,  or   apothecary, 
with  having  caused  the  death  of  any  patient  through  his  ignorance  or  culpable 
negligence. 

Poe  v.  Mondford,  Cro.  Eliz.  620. 

Watson  v.  Vanderlash,  Hetl.  71. 

Southee  v.  Denny,  1  Exch.  196  ;  17  L.  J.  Ex.  151. 

Edsall  v.  Russell,  4  M.  &  Gr.  1090  ;  12  L.  J.  C.  P.  4  ;  5  Scott, N.  It. 

801  ;  2  Dowl.  N.  S.  641  ;  6  Jur.  996. 
Foster  v.  Scripps,  39  Mich.  376  ;  33  Amer.  R.  403. 
To  call  a  practising  medical  man  "a  quack-salver,"  or  "an  empiric,"  or  a 
"  mountebank." 

Allen  v.  Eaton,  1  Roll.  Abr.  54. 

Goddart  v.  Haselfoot,  1  Viner's  Abr.  (S.  a  ),  pi.  12  ;  1  Roll.  Abr.  54. 
To  say  of  a  surgeon  to  his  patient,  "  I  wonder  you  had  him  to  attend  you. 
Do  you  know  him  ?  He  is  not  an  apothecary  ;  he  has  not  passed  any  examin- 
ation ;  he  is  a  bad  character  ;  none  of  the  medical  men  here  will  meet  him. 
Several  persons  have  died  that  he  had  attended,  and  there  have  been  inquests 
held  on  them,"  was  held  actionable  in 

Southee  v.  Denny,  1  Exch.  196  ;  17  L.  J.  Ex.  151. 
The  Court,  in  this  case,  inclined  to  think  the  words,  "  He  is  a  bad  character  ; 
none  of  the  medical  men  here  will  meet  him,"  were  actionable  by  themselves. 

But  see  Clay  v.   Roberts,  9  Jur.  N.  S.  580 ;  11  W.  R.  649  ;  8  L.  T. 

397. 
Ramadge  v.  Ryan,  9  Bing.  333  ;  2  M.  &  Sc.  421. 
To  charge  any  medical  man  or  apothecary  with  either  ignorantly  or  unskil- 
fully administering  the  wrong  medicines  or  in  excessive  doses. 
Collier,  M.  D.  v.  Simpson,  5  C.  &  P.  73. 
Tatty  v.  Alewin,  11  Mod.  221. 
Secor  v.  Harris,  18  Barb.  425. 
Carroll  v.  White,  33  Barb.  615  ;  42  N.  Y.  161. 
March  v.  Davison,  9  Paige,  580. 
[*78]  But  it  is  not  actionable  per  se  : — 

To  say  of  a  surgeon,  "He  did  poison  the  wound  of  his  patient"  ;  without 
some  averment  that  this  was  improper  treatment  of  the  wound  ;  for  else  "  it 
might  be  for  the  cure  of  it." 

Suegoe's  Case,  Hetl.  175. 
To  call  a  person  who  practises  medicine  without  full  legal  qualification  "a 
quack,"  or  "  an  impostor"  ;  for  the  law  only  protects  lawful  employments. 
Collins  v.  Carnegie,  1  A.  &  E.  695  ;  3  N.  &  M.  703. 
To  charge  a  physician  with  adultery  unconnected  with  his  professional  con- 
duct.    It  would  be  otherwise  if  he  had  been  accused  of  seducing,  or  [commit- 
ting adultery  with,  one  of  his  patients. 

(131) 


00  DEFAMATORY    WORDS. 

Ayre  v.  Craven,  2A.&E.2;  4  N.  &  M.  220. 

To  charge  a  physician  or  surgeon  generally  with  "  malpractice  "  ;  not  stating 
that  he  caused  his  patient's  death  by  malpractice. 

Eodgers  v.  Kline,  56  Miss.  808  ;  31  Amer.  R.  389. 

To  say  of  an  "  accoucheuse,"  "  A  lady  who  has  established  a  medical  college 

at has  issued  a  prospectus,  in  which  my  name  appears  as  president.     I 

have  sanctioned  the  issue  of  no  prospectus  with  my  name  in  it.     I  wish  to  know 
what  remedy  I  have,"  was  held  no  slander  on  her  in  the  way  of  her  trade. 
Brent  v.  Spratt,  Times,  Feb.  3rd,  1882. 

Dawes  intended  to  employ  the  plaintiff,  a  surgeon  and  accoucheur,  at  his 
wife's  approaching  confinement  ;  but  the  defendant  told  Dawes  that  the 
plaintiff's  female  servant  had  had  a  child  by  the  plaintiff  :  Dawes  consequently 
decided  not  to  employ  the  plaintiff  :  Dawes  told  his  mother  and  his  wife's 
sister  what  defendant  had  said  :  and  consequently  the  plaintiff's  practice  fell  off 
considerably  among  Dawes'  friends  and  acquaintances  and  others.  The  fee  for 
one  confinement  was  a  guinea.  Held,  that  the  action  lay,  special  damage  being 
proved  ;  that  the  plaintiff  was  entitled  to  more  than  the  one  guinea  damages  ; 
that  the  jury  should  give  him  such  sum  as  they  considered  Dawes'  custom  was 
worth  to  him  ;  but  that  the  jury  clearly  could  not  in  this  action  give  him  any 
thing  for  the  general  decline  of  his  business. 

Dixon  v.  Smith,  5  H.  &  N.  450  ;  29  L.  J.  Ex.  125. 

So,  to  impute  incompetency  to  any  one  practising  an  art,  as  a 
dentist,  a  schoolmaster,  a  land  surveyor,  or  an  architect,  is  action- 
able per  se 

Illustrations. 

Thus,  it  is  actionable  without  proof  of  special  damage  : — 
To  say  of  a  schoolmaster,  "  Put  not  your  son  to  him,  for  he  will  come  away 
as  very  a  dunce  as  he  went." 

Watson  v.  Vanderlasfi,  Hetl.  71. 
Or  to  accuse  a  schoolmaster  of  habitual  drunkenness. 
Hume  v.  Marshall,  42  J.  P.  136. 
Brandrick  v.  Johnson,  1  Vict.  L.  R.  C.  L.  306. 
Or  to  say  of  an  architect  engaged  to  restore  a  church,  that  he  has   no  expe- 
rience in  church  work. 

BotteriU  and  another  v.  Whitehead,  41  L.  T.  588. 
[-79]     Or  to  say  of  a  land  surveyor,  in  the  way  of  his  trade,  "  Thou  art  a 
cozener  and  a  cheating  knave,  and  that  I  can  prove." 
London  v.  Eastgate,  2  Rolle's  Rep.  72. 
But  it  has  actually  been  held  not  actionable  to  impute  prostitution  to  a  school- 
mistress 

Wetherhead  v.  Armitage,  2  Lev.   233  ;  2  Show,  18  ;  Freem.  277  ;  3 

Salk.  328. 
Per   Twisden,  J.,    in    Wharton  v.    Brook.    Ventr.    21  ;  but  see  the 
remarks  of  Lord  Deuman,  C.  J.,  in  Ayre  v.  Craven,  2  A.  &  E.  2  ; 
4N.i  M.  220. 

Traders. 

So  if  the  plaintiff  carry  on  any  trade  recognized  by  the  law,  or  be 
engaged  in  any  lawful  employment,  however  humble,  an  action  lies 
for  any  words  which  prejudice  him  in  the  way  of  such  trade  or  em- 
ployment. But  the  words  must  relate  to  his  trade  or  employment, 
and  "  touch  "  him  therein. 

Illustrations. 

Thus,  it  is  actionable  without  proof  of  special  damage : — 
To  say  of  a  clerk  or  servant  that  he  had  "  cozened  his  master." 
Seaman  v.    Bigr/,  Cro.  Car.  480. 
Reginald's  Case  (1640),  Cro.  Car.  563. 
(132) 


WORDS    CONCERNING    TRADERS.  61 

To  say  of  a  gamekeeper  that  he  trapped  three  foxes  ;  for  that  would  be  clearly 
a  breach  of  his  duties  as  gamekeeper. 

Foulger  v.  X,  wcomb,  L.  K.  2  Ex.  327  ;  36  L.  J.  Ex.  169  ;  15  W.  11. 
1181  ;  16  L.  T.  595. 
To  say  of  a  servant  girl  that  she  had  had  a  miscarriage  and  had  lost  her 
place  in  consequence. 

Connors  v.  Justice,  13  Ir.  C.  L.  R.  451. 
To  say  to  the  mistress  of  a  servant  girl,  "you  are  not  aware,  Mrs.  C,  what 
kind  of  a  girl  you  have  in  your  service  ;  if  you  were,  you  would  not  keep  her, 
for  I  can  assure  you  she  is  often  out  with  our  married  man."  C'oltrnan,  J  , 
held  that  these  words  were  actionable  without  proof  of  special  damage  ;  and  on 
a  motion  for  a  new  trial,  Tindal,  C.  J.,  said,  "  The  words  are  actionable,  inas- 
much as  they  are  spoken  of  the  plaintiff  in  her  vocation." 

Rumsey  v.  Webb  et  ux.  11  L.  J.  C.  P.  129  ;  Car.  &  M.  104. 
To  say  to  an  innkeeper,  "  Thy  house  is  infected  with  the  pox,  and  thy  wife 
was  laid  of  the  pox  ;  "  for  even  if  smallpox  only  was  meant,  still  "  it  was  a  dis- 
credit to  the  plaintiff,   and  guests  would  not  resort "  to  his  house.     Damages 
£50. 

Levet's  Case,  Cro.  Eliz.  289. 

And  see  the  remarks  of  Kellv,  C.  B.,  in  Riding  v.  Smith,  1  Ex.  D. 
94 ;  45  L.  J.  Ex.  281  ;  24  W.  R.  487 ;  34  L.  T.  500. 
But  it.  is  not  actionable  per  se  : — 
To  say  of  a  livery-stable  keeper,  ' '  You  are  a  regular  prover  under  bank- 
[*80]  ruptcies,  a  regular  bankrupt  maker  ;  "  for  it  is  not  a  charge  against  him 
in  the  way  of  his  trade. 

Angle  v.  Alexander,  7  Bing.  119  ;  1  Cr.  &  J.  143  ;  4  M.  &  P.  870  ;  1 
Tyrw.  9. 
Nor  to  say  to  a  clerk  to  a  gas  company,  "  You  area  fellow,  a  disgrace  to  the 
town,  unfit  to  hold  your  situation  for  vour  conduct  with  whores." 
Lumby  v.  Allday,  1  C.  &  J.  301  ;  1  Tyrw.  217. 
And  see  James  v.  Brook,  9  Q.  B.  7  ;  16  L.  J.  Q.  B.  17  ;  10  Jur.  541. 
Nor  to  impute  to  a  staymaker  that  his  trade  is  maintained  by  the  prostitution 
of  his  shopwoman. 

Brayne  v.  Cooper,  5  M.  &  AY.  249. 

But 'see  Riding  v.  Smith,  1  Ex.  D.  91  ;  45  L   J.  Ex.  281  ;  24  W.  R. 
487  ;  34  L.  T.  500. 

The  law  guards  most  carefully  the  credit  of  all  merchants  and 
traders  ;  any  imputation  on  their  solvency,  any  suggestion  that 
they  are  in  pecuniary  difficulties,  or  are  attempting  to  evade  the 
operation  of  any  Bankruptcy  Act,  is  therefore  actionable  per  se. 

Illustrations. 

Thus,  it  is  actionable  without  proof  of  special  damage  : — 
To  impeach  the  credit  of  any  merchant  or  tradesman  by  imputing  to  him 
bankruptcy  or  insolvency,  either  past,  present  or  future. 
Johnson  v.  Lemmon,  2  Rolle's  Rep.  144. 
Ihompson  v.  Twenge,  2  Rolle's  Rep.  433. 
Vivian  v.  Willet,  Sir  Thomas  Raymond,  207 ;  3  Salk.  326. 
Stanton  v.  Smith,  2  Ld.  Raymond,  1480  ;  2  Str.  762. 
Whittington  v.  Gladwin,  5  B.  &  C.  180  ;  2  C.  &  P.  146. 
Robinson  v.  Marchant,  7  Q.  B.  918  ;  15  L.  J.  Q.  B.  134  ;  10  Jur.  156. 
Harrison  v.  Bevington,  8  (J.  &  P.  708. 
Gostling  v.  Brooks,  2  F.  &  F.  76. 

Brown  v.  Smith,  13  C.  B.  596 ;  22  L.  J.  C.  P.  151  ;  17  Jur.  807 ;  1 
C.  L.  R.  4. 
To  say  to  a  tailor,  "  I  heard  you  were  run  away,"  se.  from  your  creditors. 
Davis  v.  Lewis,  7  T.  R.  17. 
And  see  Dobson  v.  Thornistone,  3  Mod.  112. 
Chapman  v.  Lamphire,  3  Mod.  155. 
(133) 


62  DEFAMATORY    WORDS. 

Arm  v.  Johnson,  10  Mod.  111. 

Harrison  v.  Thornborough,  10  Mod,  19G  ;  Gilb.  Cas.  114. 
To  say  of  a  brewer  that  he  had  been  arrested  for  debt.     And  this  although  no 
express  reference  to  Ins  trade  was  made  at  time  of  publication,  for  such  words 
must  necessarily  affect  his  credit  therein. 

Jones  v.  Littler,  7  M.  &  W.  423  ;  10  L.  J.  Ex.  171. 
To  assert  that  the  plaintiff  had  once  been  bankrupt  in  another  place,  when 
carrying  on  another  trade  ;  for  that  may  still  affect  him  here  in  his  present 
trade. 

Ley  croft  v.  Bunker,  Cro.  Car.  317. 
Hall  v.  Smith,  1  M.  &  S.  287. 
Mggins  v.  Cogswell,  3  M.  &  S.  369. 
[*81]  To  say  of  any  trader,  "  He  is  not  able  to  pay  his  debts." 

Drake  v.  Hill,  Sir  T.  Raym.  184  ;   2  Keble,  549  ;  1  Lev.  276  ;    Sid. 

424. 
Hooker  v.  Tucker,  Holt,  39  ;  Carth.  330. 
Morris  v.  Langdale,  2  Bos.  &  Pul.  284. 
Orpwood  v.  Barkes  (vel  Parkes),  4  Bing.  261  ;  12  Moore,  492. 
To  say  of  a  farmer,  "  He  cannot  pay  his  labourers." 

Barnes  v.  Holloway,  8  T.  R.  150. 
To  impute  insolvency  to  an  innkeeper,  even  though  at  that  date  innkeepers 
were  not  subject  to  the  bankruptcy  laws. 

Whittington  v.  Gladwin  (1825),  5  B.  &  C.  180  ;  2  C.  &  P.  146. 
Southam  v.  Allen,  Sir  T.  Raym.  231. 
But  it  is  not  actionable  to  say  merely,  "  A.  owes  me  money,"  if  no  words  be 
added  imputing  that  A.  is  it  liable  to  pay  the  debt. 
Per  Bramwell,  B..4F.&F.  321,  322. 

So  if  the  defendant's  words  impute  to  the  plaintiff  dishonesty  and 
fraud  in  the  conduct  of  his  trade,  such  as  knowingly  selling  inferior 
articles  as  superior,  or  wilfully  adulterating  his  wares,  they  will  be 
actionable  per  se.  Though  all  bond  fide  complaints  by  a  customer 
of  the  goods  supplied  to  him  are  of  course  privileged.  ( Crisp  v. 
Gill,  29  L.  T.  (Old  S.)  82  ;  Oddy  v.  Lord  Geo.  Paulet,  4  F.  &  F. 
1009.)  If  the  words  merely  impugn  the  goods  the  plaintiff  sells, 
they  are  not  actionable  unless  they  fall  within  the  rules  relating  to 
Slander  of  Title,  post,  p.  147  ;  for  they  are  but  an  attack  on  a 
thing,  not  on  a  person.  (Fenn  v.  Dixe  (1638),  1  Roll.  Abr.  58  ; 
Evans  v.  Harlow,  5  Q.  B.  624  ;  13  L.  J.  Q.  B.  120  ;  Harman  v. 
Delany,  2  Str.  898  ;  Fitz.  121  ;  1  Barnard.  289,  438.)  But  often 
an  attack  on  a  commodity  may  be  also  an  indirect  attack  upon  its 
vendor  ;  e.  g.,  if  fraud  or  dishonestv  be  imputed  to  him  in  offering 
it  for  sale.  (See  .Tenner  v.  A' Beckett,  L.  R.  7  Q.  B.  11  ;  41  L.  J. 
Q.  B.  14  ;  20  W.  R.  181  ;  25  L.  T.  464  ;  Burnet  v.  Wells,  (1700), 
12  Mod.  420  ;  Clark  v.  Freeman,  11  Beav.  112  ;  1?  L.  J.  Ch.  142  ; 
12  Jur.  149.) 

[  Illustrations. 

Thus,  it  is  actionable  without  proof  of  special  damage  : — 
To  say  of  a  trader,  "  He  is  a  cheating  knave,  and  keeps  ?,  false  debt-book." 

Crawfoot  v.  Bale,  1  Vent.  263 ;  3  Salt.  327. 

Overruling  Todd  v.  Hastings,  2  Saund.  307. 
Or  that  he  uses  false  weights  or  measures. 

Griffiths  v.  Lewis,  7  Q.  B.  61  ;    14  L.  J,  Q.  B.  197  ;   9  Jur.  370  :  8 
Q.  B.  841  ;  15  L.  J.  Q.  B.  219  ;  10  Jur.  711. 

Bray  v.  Ham,  1  Brownlow  &  Golds.  4. 

Stober  v.  Green,  ib.  5. 

Prior  v.  Wilson,  1  C.  B.  N.  S.  95. 
(134) 


WORDS    CONCERNING    TRADERS.  63 

[*  82]  To  say  to  a  cornfactor,   "  You  are  a  rogue  and  a  swindling  rascal,  you 
delivered  me  100  bushels  of  oats,  worse  by  0s.  a  bushel  than  I  bargained  for." 
Thomas  v.  Jackson,  3  Bing.  104  ;  10  Moore,  425. 
To  say  of  a  tradesman  that  he  adulterates  the  goods  he  sells. 

Jesson  v.  Hayes  (1636),  Roll.  Abr.  63. 
To  say  of  a  contractor,  "  He  used  the  old  materials,"  when  his  contract  was 
for  new,  is  actionable,  with  proper  innuendoes. 

Baboneau  v.  Farrcll,  15  C.  B.  360  ;   24  L.  J.  C.  P.  9  ;   1  Jur.  N.  S. 

114:  3C.  L.  R.  142. 
Sir  It.  Greenfield's  Case,  Mar.  82  ;   1  Yiner's  Abr.  465. 
See  Smith  v.  Ma  theirs,  1  Moo.  &  Rob.  151. 
To  say  of  an  auctioneer  or  appraiser  who  had  valued  goods  for  the  defendant, 
"  He  is  a  damned  rascal,  he  has  cheated  me  out  of  £100  on  the  valuation." 
Bryant  v.  Loxton,  11  Moore,  344. 
Rarnsdale  v.  Greenacre,  1  F.  &  F.  61,  ante,  p.  69. 
To  say  of  a  butcher  that  he  changed  the  lamb  bought  of  him  for  a  coarse 
piece  of  mutton. 

Crisp  v.  Gill,  29  L.  T.  (Old  S.)  82. 
Rice  v.  Pidgeon,  Comb.  161. 
But  to  call  a  tradesman   "a  rogue,"  or  "a  cheat,"  or   "a  cozener,"  is  not 
actionable,  unless  it  can  be  shown  that  the  words  refer  to  his  trade.     To  impute 
distinctly  that  he  cheats  or  cozens  in  his  trade  is  actionable. 
Joints  v.  Gittings,  Cro.  Eliz.  239. 
Cotes  v.  Ketle,  Cro.  Jac.  204. 
Terry  v.  Hooper,  1  Lev.  115. 
Savage  v.  Bobery,  5  Mod.  398 ;  2  Salk.  694. 
Surman  v.  Shelleto,  3  Burr.  1688. 
Bromefield  v.  Siioke,  12  Mod.  307. 
Savile  v.  Jardine,  2  H.  Bl.  531. 
Lancaster  v.  French,  2  Stra.  797. 
Davis  v.  Miller  et  u.r.,  2  Stra.  1169. 
Fellows  v.  Hunter,  20  Up.  Can.  Q.  B.  382. 
Brady  v.  Toulden,  Melbourne  Argus  R.,  ante,  p.  69. 
[N.B. — Lancaster  v.  French  appears  to  go  a  little  further  than  the  other  cases 
cited  :  but  if  so,  it  must  be  taken  to  be  so  far  overruled  by  them.] 

So  to  say  to  a  pork  butcher,  "  Who  stole  Fraser's  pigs  ?  You  did,  you 
bloody  thief,  and  I  can  prove  it — you  poisoned  them  with  mustard  and  brim- 
stone," was  held  not  actionable  (the  jury  having  found  that  the  words  were  not 
intended  to  impute  felony)  ;  for  there  was  nothing  to  show  that  they  were 
spoken  of  the  plaintiff  in  relation  to  his  trade. 
Sibley  v.  Tomlins,  4  Tyrwhitt,  90. 
So  to  say  of  a  grocer,  "  His  shop  is  in  the  market,"  is  not  actionable,  in  the 
primary  sense  of  the  words  at  all  events. 

Buel  v.  Tatnell,  29  W.  R.  172  ;  43  L.  T.  507. 

It  must  be  averred  and  proved  that  the  plaintiff  carried  on  his 
trade  at  the  time  the  words  were  spoken  ;  else  the  words  cannot  be 
spoken  of  him  in  the  way  of  such  trade.  [Bellamy  v.  Iturch,  16  M. 
&  W.  590.)  [*83]  Moreover  the  trade  or  employment  must  be  one 
recognized  by  the  law  as  a  legitimate  means  of  earning  one's  living. 

Illustrations. 

A  stock-jobber  could  not  sue  for  words  spoken  of  him  in  the  way  of  his  trade 
so  long  as  that  trade  was  illegal  within  the  7  Geo.  II.  c.  8.  s.  1  (Sir  John  Bar- 
nard's Act  ;  now  repealed  by  23  &  24  Vict,  c  28). 
Morris  v.  Langdale,  2  Bos.  &  Pul.  284. 
Collins  v.  Carnegie,  1  A.  &  E.  695  ;  3  N.  &  M.  70°., 
If  the  plaintiff  avers  that  he  carries  on  two  trades,  it  will  be  sufficient  to  prove 
that  he  carries  on  one,  if  the  words  affect  him  in  that  one. 
Fiqqins  v.  Cogswell,  3  M.  &  S.  369. 
Hall  v.  Smith,  1  M.  &  S.  287. 

(135) 


04  DEFAMATORY    WORDS. 

"Where  insolvency  is  imputed  to  one  member  of  a  firm,  either  he  or  the  firm 
may  sue,  for  it  is  a  reflection  on  the  credit  of  both. 
Harrison  v.  Bevingtoh,  8  C.  &  P.  808. 
Cook  and  another  v.  Batchellor,  7  Bos.  &  Pul.  150. 
Foster  and  others  v.  Lawson,  3  Bing.  452  ;  11  Moore,  360. 
A  married  woman  carrying  on  a  separate  trade,  may  sue  without  joining  her 
husband  for  any  tort  affecting  such  separate  trade  or  her  credit  therein. 

Summers  v.  City  Bank,  L,  R.  9  C.  P.  580  ;  43  L.  J.  C.  P.  261. 
And  see  45  &  40  Vict.  c.  75,  ss.  1,  12,  post,  pp.  395,  397. 


IV.    Words  actionable  only  by  reason  of  Special  Damage. 

No  other  words  are  actionable  without  proof  of  special  damage. 
Thus,  to  accuse  a  man  of  fraud,  dishonesty,  immorality,  or  any 
vicious  and  dishonorable  (but  not  criminal)  conduct,  is  not  action- 
able, unless  it  has  produced  as  its  natural  and  necessary  consequence 
some  pecuniary  loss  to  the  plaintiff. 

Illustrations. 

Thus  the  following  words  are  not  actionable  without  proof  of  special 
damage  : — 

"  Thou  art  a  scurvy  bad  fellow." 

Fisher  v.  Atkinson,  1  Roll.  Abr.  43. 
"A  rogue,  a  villain,  and  a  varlet"  (for  these,  and  words  of  the  like  kind 
are  to  be  considered  as  "  words  of  heat "), 

Per  cur.  in  Stanhope  v.  Blith,  4  Rep.  15. 
[""84]  "A  runagate  rogue." 

Gockaine  v.  Hopkins,  2  Lev.  214. 
"A  common  filcher." 

Coodale  v.  Castle,  Cro.  Eliz.  554. 
"  A  cozening  knave." 

Brunkard  v.  Segar,  Cro.  Jac.  427  ;  Hutt.  13  ;  1  Vin.  Abr.  427. 
"  A  liar." 

Kimmis  v.  Stiles,  44  Vermont,  351. 
"  A  cheat." 

Savage  v.  Robery,  2  Salk.  094  ;  5  Nod.  398. 
"  You  are  a  swindler." 

Saville  v.  Jardine,  2  H.  Bl.  531. 
Black  v.  Hunt,  2  L.  R.  Ir.  10. 
"  He  is  a  rogue  and  a  swindler  ;  I  know  enough  about  him  to  hang  him." 

Ward  v.  Weeks,  7  Bing.  211  ;  4  M.  &  P.  796. 
"  lie  is  a  rogue,  and  has  cheated  his  brother-in-law  of  upwards  of  £2,000." 

Hopwood  v.  Thorn.  8  V.  B.  293  ;  19  L.  J.  C.  P.  94  ;   14  Jur.  87. 
"  Thy  credit  hath  been  called  in  question,  and  a  jury  being  to   pass  upon  it, 
thou  foistedst  in  a  jury  early  in  the  morning  ;  and  the  lands  thou  hast  are  gotten 
by  lewd  practices." 

Nichols  v.  Badger,  Cro.  Eliz.  348. 
"  This  gentlemen  has  defrauded  us  of  £22,000." 
Needham  v.  Bowling,  15  L.  J.  C.  P.  9. 
Richardson  v.  Allen,  2  Chit.  657. 
"  The  conduct  of  the  plaintiffs  was  so  bad  at  a  club  in  Melbourne,  that  a 
round  robin  was  signed  urging  the  committee  to  expel  them  ;  as,  however,  they 
were  there  only  for  a  short  time,  the  committee  did  not  proceed  further." 

Chamberlain  v.  Boyd  (C.  A.),   11  Q.  B.  U,  407  ;  52  L.  J.  Q.  B.  277  ; 
31  W.  R.  572  ;   48  L.  T.  328  ;  47  J.  P.  372. 
"  I  have  seen  the  plaintiff  ;   and  from  what   I  have  seen  and    heard,  I  think 
it  is  my  duty  to  urge  you  "  (plaintiff's  husband)    "to  send  for  one  or  two  doe- 
tors  to  see  her  ;  some  opinion  ought  to  be  taken  as  to  the  state  of  her  mind." 

(136) 


WORDS    IMPUTING    IMMORALITY.  65 

Weldon  v.  DeBathe.  33  W.  R.  328. 
To  say  "You  cheat  everybody,  you  cheated  me,  you  cheated  Mr.  Saunders," 
is  not  actionable  unless  it  be  spoken  of  the  plaintiff  in  the  way  of  his  profession 
or  trade. 

Davis  v.  Miller  etux.,%  Stra.  1169. 
Lucas  v.  Flinn,  35  Iowa,  9. 
To  call  a  man  a  "  blackleg  "  is  not  actionable"unless  it  can  be  shown  that  word 
was  understood  by  the  bystanders  to  mean  "a  cheating  gambler  liable  to  be 
prosecuted  as  such." 

Barnett  v.  Allen,  3H.&K  376  ;  4  Jur.  N.  S.  488  ;  27  L.  J.  Ex. 
412  ;  1  F.  &  F.  125. 
In  an  American  case  the  difficulty  caused  by  absence  of  special  damage  was 
surmounted  by  suing  in  trespass  : — A  man  who,  instead  of  walking  along  the 
street,  stops  on  the  pavement  opposite  the  plaintiff's  freehold  shop  using  insult- 
ing and  abusive  language  towards  the  plaintiff,  and  persists  in  such  conduct, 
though  requested  to  move  on,  is  a  trespasser,  and  the  jury  in  such  an  action  of 
trespass  may  award  substantial  damages,  though  no  special  damages  be  proved, 
and  although  the  abusive  words  be  not.  actionable  j?er  se.  (Adams  v.  Rivers,  11 
[*  85]  Barbour  (New  York)  Reports,  390.)  For  as  one  of  the  public  he  was  only 
entitled  to  use  the  highway  for  passing  and  repassing.  (Dovaston  v.  Paine, 
2  Sm.  L.  Cas.  (8th.  ed.)  p.  142.)  And  evidence  of  his  language  while  commit- 
ting a  trespass  is  properly  admitted  to  show  in  what  spirit  the  act  was  done. 
(Merest  v.  Harvey,  5  Taunt.  442.)  "  Where  a  wrongful  act  is  accompanied  by 
words  of  contumely  and  abuse,  the  jury  are  warranted  in  taking  that  into  con- 
sideration and  giving  retributory  damages."    Per.  Byles,  J.,  in 

Bell  v.  Midland  Rail.   Co.,  10  C.  N.  S.  287,  308  ;  30  L.  J.  C.   P  B. 
273  ;  9  W.  R.  612  ;  4  L.  T.  293. 

Words  imputing  adultery,  profligacy,  immoral  conduct,  &c, 
even  when  spoken  of  one  holding  an  office  or  carrying  on  a  profes- 
sion or  business,  will  not  be  actionable,  unless  they  "  touch  him  " 
in  that  office,  profession,  or  business.  Thus,  if  alleged  of  a  bene- 
ficed clergyman  they  will  be  actionable,  because  if  the  charge  were 
true  it  would  be  ground  for  degradation  or  deprivation,  as  it  would 
prove  him  unfit  to  hold  his  benefice  or  to  continue  in  the  active 
duties  of  his  profession.  ( Gallwey  v.  Marshall,  9  Ex.  294  ;  23  L. 
J.  Ex.  78.)  But  if  the  same  words  were  spoken  of  a  trader,  or 
even  of  a  physician  or  a  schoolmistress,  they  would  not  be  actiona- 
ble without  proof  of  special  damage,  as  they  do  not  necessarily  affect 
the  plaintiff  in  relation  to  his  trade  or  profession.  The  imputation 
must  be  connected  with  the  professional  duties  of  the  plaintiff. 

Illustrations. 

Words  imputing  adultery  to  a  physician  were  laid  to  have  been  spoken  "  of 
him  in  his  profession,"  but  there  was  nothing  in  the  declaration  to  connect  the 
imputation  with  the  plaintiff's  professional  conduct.  Held,  that  the  words 
were  not  actionable  without  special  damage. 

Ayre  v.  Graven,  2  A.  &  E.  2  ;  4  N.  &  M.  220. 
To  impute  prostitution  to  a  schoolmistress  is  not  actionable  per  se.     Per 
Twisden,  J.,  in 

Wharton  v.  Brook,  Ventr.  21. 

Wetherhead  v.  Armitage,  2  Lev.  233  ;  2  Show.  18  ;  Freem.  277  ;  3 
Salk.  328. 
And  words  imputing  immorality  to  a  trader  or  his  clerk  are  not  actionable 
without  special  damage.' 

Lumby  v.  Allday,  1  Cr.  &  J.  301  ;  1  Tyrw.  217. 
Nor  are  words  imputing  to  a  staymaker  that  his  trade  is  maintained  by  the 
prostitution  of  his  shopwoman. 

Brayne  v.  Cooper,  5  M.  &  W.  249. 
5  Lib.  &  Slan.  (137) 


66  DEFAMATORY    WORDS. 

But  now  see  Riding  v.  Smith,  1  Ex.  D.  91  ;    45  L.  J.  Ex.  281  ;  24 
W.  R.  487  ;  34  L.  T.  500. 

[*86]  Words  imputing  unchastity  or  adultery  to  a  woman,  mar- 
ried or  unmarried,  however  gross  and  injurious  they  may  be,  are 
not  actionable,  unless  she  can  prove  that  they  have  directly  caused 
her  special  damage. 

As  to  what  constitutes  special  damage,  see  the  stringent  rules 
laid  down  in  c.  X.,  post,  pp.  297 — 306. 

The  only  exception  is  in  the  case  of  actions  brought  in  the  local 
Courts  of  the  city  of  London,  the  borough  of  Sonthwark  (Sid.  97), 
and,  it  is  said,  of  the  city  of  Bristol  {Power  v.  Shaw,  1  Wils.  62), 
for  words  spoken  within  the  jurisdiction  of  those  Courts.  It  was 
formerly  the  custom  in  those  localities  to  cart  and  whip  whores, 
tingling  a  basin  before  them.  Hence  to  call  a  'woman  "whore" 
or  "  strumpet  "  (  Cook  v.  Wingfield,  1  Str.  555),  or  "  bawd  "  (1  Vin. 
Abr.  396),  or  her  husband  a  "  cuckold  "  (  Vicars  v.  Worth,  1  Str. 
471),  was  supposed  to  be  an  imputation  of  a  criminal  offence  to  the 
female  plaintiff  and  therefore  actionable.  But  no  action  will  lie  in 
the  High  Court  of  Justice  for  such  words,  since  the  custom  has 
never  been  certified  by  the  Recorder  and  must  therefore  be  strictly 
proved.  The  plaintiffs  failed  to  prove  such  a  custom  in  1782  in 
Stainton  et  ux.  v.  Jones,  2  Selw.  N.  P.  1205  (13  ed.)  ;  and  it  would 
be  still- more  difficult  to  do  so  in  the  present  day.  The  City  Courts 
used  formerly  to  take  judicial  notice  of  their  own  custom  ;  but  I 
doubt  if  they  would  do  so  now,  the  custom  being  entirely  extinct. 
(See  Oxford  et  ux.  v.  Cross  (1599),  4  Rep.  18  ;  Ilassell  v.  Capcot 
(1639),  'l  Vin.  Abr.  395  ;  1  Roll.  Abr.  36  ;  Cook  v.  Wingfield,  1 
Str.  555  ;  Watson  v.  Clerke,  Comb.  138,  139  ;  notes  [14]  and  [96] 
to  1  Dougl.  by  Frere,  p.  380  ;  T/ieyer  v.  Eastwick,  4  Burr.  2032  ; 
Brand  and  wife  v.  Roberts  and  wife,  4  Burr.  2418  ;  Mill/  x.Leviis, 
1  Vin.  Abr.  396  :  Vicars  v.  Worth,  1  Str.  471  ;  Hodgkins  et  ux. 
v.  Corbet  et  ux.,  1  Str.  545  ;  Roberts  v.  Herbert,  Sid.  97  ;  S.  C. 
nom.  Cans  v.  Roberts,  1  Keble,  418.) 

Illustrations. 

To  say  of  a  young  woman  that  she  had  a  bastard  is  not  actionable  without 
proof  of  special  damage  ;  "  because  it  is  a  spiritual  defamation,  punishable  in 
the  spiritual  court." 

Per  Holt.  C.  J.,  in  Ogden  v.   Turner,  Holt,   40;  G  Mod.   104;  2 

Salk.  696. 
Bwyer  v.  Meehan,  18  L.  R.  Ir.  138,  post,  p.  301. 
To  call  a  woman  "  a  whore  "  or  "  a  strumpet"  is  not  actionable,  except  by 
special  custom,  if  the  action  be  tried  in  the  cities  of  London  and  Bristol.     "  To 
maintain  actions  for  such  brabling  words  is  against  law." 
Oxford  et  ux.  v.  Cross  (1599).  4  Rep.  18. 
Gascoigne  et  ux.  v.  Ambler,  2  Ld.  Raym.  1004. 
Power  v.  Shaw,  1  Wils,  62  (Bristol). 
[*87]     It  is  not  actionable  to  call  a  woman  a  "  bawd," 
Hollingshead's  disc  (1632),  Cro.  Car.  229  ; 
Hixe  v.  Hollingshead  (1632),  Cro.  Car.  261  ;   ■ 
unless  it  be  in  the  City  of  London. 

Rily  v.  Lewis  (1640),  1  Vin.  Abr.  396. 
The  words  ''You  are  living  by  imposture;  you  used   to   walk  St.  Paul's 
churchyard  for  a  living," — spoken  of  a  woman  with  the  intention  of  imputing 

(138) 


WORDS    IMPUTING    UNCHASTTTY.  G7 

that  she  was  a  swindler  and  a  prostitute, — are  not  actionable   without  special 

Wilbi/  v.  Elston,  8  C.  B.  142  ;  18  L.  J.  C.  P.  320  ;  13  Jur.  706  ;  7  D. 

&  L.  143. 

So  to  say  of  a  married  man  that  he  has  "  had  two  bastards  and  should  have 

kept  them,"  is  not  actionable,  though  it  is  averred  that  by  reason  of  such  words 

"discord  arose  between  him  and  his  wife,  and  they  were  likely  to  have  been 

divorced." 

Barmund's  Case,  Cro.  Jac.  473. 
Salter  v.  Broicne,  Cro.  Car.  436  ;  1  Roll.  Abr.  37. 
The  defendant  told  a  married  man  that  his  wife  was  "  a  notorious  liar"  and 
"an  infamous  wretch,"  and  had  been  all  but  seduced  by  Dr.  C.  of  Roscommon 
before  her  marriage.     The  husband  consequently  refused  to  live  with  her  any 
longer.     Held,  no  action  lay. 

Lynch  v.  Knight  and  wife,  9  H.  L.  C.  577;  8  Jur.  N".  S.  724;  5 
L.  T.  291. 
"Where  the  defendant  asserted  that  a  married  woman  was  guilty  of  adultery, 
and  she  was  consequently  expelled  from  the  congregation  ami  bible  society  of 
her  religious  sect,  and  was  thus  prevented  from  obtaining  a  certificate,  without 
which  she  could  not  become  a  member  of  any  similar  society,  held,  no  action 
lay. 

Roberts  and  wife  v.  Roberts,  5  B.  &  S.  384  ;  33  L.  J.  Q.  B.  249  ;  10 

Jur.  N.  S.  1027  ;  12  W.  R.  909  ;  10  L.  T.  602. 
Shafef  v.  Ahalt,  48  Maryland,  171  ;  30  Amer.  R.  456. 
[It  does  not  appear  that  the  case  as  to  excommunication,  Barnabas  v.  Iraun- 
ter,  1  Vin.  Abr.  396,  ante,  p.  61,  was  cited  to  the  Court] 

The  defendant  falsely  imputed  incontinence  to  a  married  woman.  In  conse- 
quence of  his  words  she  lost  the  society  and  friendship  of  her  neighbours,  and 
became  seriously  ill  and  unable  to  attend  to  her  affairs  and  business,  and  her 
husband  incurred  expense  in  curing  her,  and  lost  the  society  and  assistance  of 
his  wife  in  his  domestic  affairs.  Held,  that  neither  husband  nor  wife  had  any 
cause  of  action. 

Allsop  and  wife  v.  Allsop,  5  H.  &  K  534  ;  29  L.  J.  Ex.  315  :  8  W.  R. 

449  ;  6  Jur.  N.  S.  433  ;  36  L.  T.  (Old  S.)  290. 
But  see  Dalies  v.  Solomon,   L.  R.  7  Q.  B.  112 ;  41  L.  J.  Q.  B.  10  ; 

20  W.  R.  167  ;  25  L.  T.  799  ;  post,  p.  335. 
Riding  v.  Smith,  1  Ex.  D.  91  ;  45  L.  J.  Ex.   281  ;  24  W.  R.   487  ; 
34  L.  T.  500 ;  post,  p.  92. 

Our  law  on  this  point  has  often  been  denounced  by  learned 
judges.  "  I  may  lament  the  unsatisfactory  state  of  our  law  accord- 
ing to  which  the  imputation  by  words  however  gross,  on  an  occasion 
however  public,  upon  the  chastity  of  a  modest  matron  or  a  pure  virgin, 
is  not  |  *88j  actionable  without  proof  that  it  has  actually  produced 
special  temporal  damage  to  her,"  says  Lord  Campbell,  L.  C,  in 
Lynch  v.  Knigld  and  wife,  9  II.  L.  C.  593  ;  5  L.  T.  291.  "  Instead 
of  the  word  '  unsatisfactory '  I  should  substitute  the  word  '  barbar- 
ous,' "  says  Lord  Brougham,  p.  594.  See  also  the  remarks  of  Willes, 
C.  J.,  in  Jones  v.  Heme,  2  Wjls.  87  ;  and  of  Coekburn,  C.  J., 
Crompton  and  Blackburn,  J  J.,  in  Jioberts  and  wife  v.  Roberts,  5  B. 
&  S.  384  ;  33  L.  J.  Q.  B.  249  ;  10  Jur.  N.  S.  1027  ;  12  W.  R.  909  ; 
10  L.  T.  602. 

Two  explanations  may  be  assigned  for  the  undesirable  state  of 
our  law  on  this  point.  (1)  In  the  days  when  our  common  law  was 
formed,  every  one  was  much  more  accustomed  than  they  are  at 
present  to  such  gross  language,  and  epithets  such  as  "  whore  " 
were  freely  used  as  general  terms  of  abuse  without  seriously  imput- 
ing any  specific  act  of  unchastity.     (2)  The  spiritual  Courts  had 

(139) 


68  DEFAMATORY    WORDS. 

jurisdiction  over  such  charges,  and  though  they  could  not  award 
damages  to  the  plaintiff,  they  could  punish  the  defendant  for  the 
benefit  of  his  soul  ;  hut  all  actions  in  the  Ecclesiastical  Courts  for 
defamatory  words  were  abolished  by  the  18  &  19  Vict.  c.  41,  and 
no  attempt  was  made  to  substitute  any  remedy  in  the  ordinary 
Courts  of  law.  In  Scotland  a  verbal  imputation  of  unchastity  is 
actionable  without  proof  of  special  damage.  Throughout  the 
United  States  an  imputation  of  unchastity  to  an  unmarried  female 
is  actionable  per  se  by  statute  :  and  so  is  an  imputation  of  adultery 
to  a  married  woman  in  all  the  States,  except  Maryland.  (See  ante, 
p.  57.)  Even  to  charge  a  woman  with  being  drunk  is  actionable  in 
Massachusetts.    [Brown  v.  JVickerson,  1  Gray,  1.) 

The  hardship  is  increased  by  the  rules  relating  to  special  damage, 
Avhich  are  peculiarly  stringent  in  the  case  of  a  married  woman. 
That  her  husband  has  sustained  special  damage  in  consequence  of 
the  words  will  not  avail  for  her.  And  unless  she  carry  on  a  sepa- 
rate trade  or  business  of  her  own  under  the  Married  Women's 
Property  Acts,  it  is  almost  impossible  for  her  to  sustain  any  special 
damage  to  herself,  for  all  her  property  is  either  in  law  her  husband's, 
or  is  safely  vested  in  trustees  for  her,  and  cannot  possibly  be 
affected  by  defamatory  words.  That  she  loses  the  society  of  her 
friends  is  no  special  damage  ;  and  in  Lynch  v.  Knight  and 'wife, 
9  II.  L.'C.  577,  Lord  Wensleydale  denied  that  the  loss  of  the  con- 
sortium of  her  husband  could  constitute  special  damage.  The 
only  object  of  insisting  on  proof  of  special  damage  is  to  secure  that 
the  plaintiff's  reputation  has  in  fact  been  seriously  impaired.  And 
in  many  of  these  cases  it  is  clear  that  this  was  so.  What  more 
convincing  proof  of  loss  of  reputation  could  be  adduced  than  the 
fact  proved  by  Mrs.  Roberts  that  she  was  expelled  from  the  con- 
gregation, and  not  allowed  to  continue  a  member  of  her  [*89  |  religi- 
ons sect.  Yet  in  that  case  it  was  held  no  action  lay.  Surely  it 
is  high  time  that  some  alteration  should  be  made  in  our  law  on 
this  point. 

All  words,  if  published  without  lawful  occasion,  are  actionable, 
if  they  have  in  fact  produced  special  damage  to  the  plaintiff,  such 
as  the  law  does  not  deem  too  remote.  "  Any  words  by  which  a 
party  has  a  special  damage  "  are  actionable.  (Comyn's  Digest, 
Action  upon  the  Case  for  Defamation,  D.  30.)  "  Undoubtedly  all 
words  are  actionable,  if  a  special  damage  follows."  (Per  Heath,  J., 
in  Moore  v.  Meagher,  1  Taunt.  44.) 

It  is  usual  to  qualify  the  generality  of  the  above  rule  by  adding  a 
proviso,  "  provided  the  words  themselves  be  in  their  nature  defam- 
atory." But  I  think  the  rule  as  expressed  above  is  a  correct  propo- 
sition of  law.  And  there  are  objections  to  the  phrase  "words  in 
their  nature  defamatory."  It  is  not  defamatory  to  say  of  a  pork 
butcher  "  he  knows  no  law  :  he  cannot  draw  a  lease  ;  "  it  is  defama- 
tory so  to  speak  of  a  solicitor.  You  can  not  therefore  lay  down  a 
priori  any  hard  and  fast  rule  as  to  what  words  are  in  their  nature 
defamatory,  and  what  are  not  so.  Each  case  must  depend  on  its  own 
circumstances.      (See  6  Mod.  24.)       And  that  is  why  "  defamatory 

(140) 


WORDS    CAUSING    SPECIAL    DAMAGE.  69 

words  "  have  at  the  commencement  of  this  chapter  been  defined  as 
"  words  which  in  any  given  case  have  appreciably  injured  the  plain- 
tiff's reputation." 

In  an  action  of  libel  or  slander,  the  words  must  of  course  be 
defamatory  ;  that  is,  the  plaintiff's  reputation  must  have  been  ap- 
preciably impaired.  And  so,  if  we  confine  ourselves  strictly  to  ac- 
tions of  defamation  and  to  words  not  actionable  per  se,  no  doubt  it  is 
correct  to  state  the  rule  thus: — "  All  words  if  published  without 
lawful  occasion,  are  actionable,  if  it  be  proved,  by  evidence  of  spe- 
cial damage  not  too  remote,  that  they  have  in  fact  injured  the  plain- 
tiff's reputation  ;  and  in  such  cases  the  action  is  called  an  action  of 
defamation."  And  the  converse  of  this  rule  will  be  equally  correct : 
— "  No  words  can  be  the  subject  of  an  action  of  defamation,  how- 
ever maliciously  published,  and  although  they  have  caused  actual 
damage  to  the  plaintiff,  unless  it  is  also  proved  that  the  plaintiff's 
reputation  has  in  fact  been  thereby  injured." 

But  though  an  action  of  defamation  will  not  lie,  it  by  no  means 
follows  that  some  other  action  will  not  lie.  Wherever  a  defendant 
speaks  words  of  whatever  nature,  maliciously  intending  to  do  some 
f  *90]  injury  to  the  plaintiff  thereby,  and  the  words  have  their  de- 
sired effect  and  do  actually  produce  damage  to  the  plaintiff,  here 
there  is  that  actionable  "concurrence  of  loss  and  injury,"  spoken  of 
by  Lord  Campbell,  L.  C,  in  Lynch  v.  Knight  and  wife,  9  II.  L.  C. 
589  ;  and  an  ordinary  action  on  the  case  will  lie,  if  not  an  action  of 
libel  or  slander. 

This  no  doubt  is  running  counter  to  the  head-note  in  Kelly*  v. 
Partington,  5  B.  &  Ad.  645 :  "  Held  that  the  words  were  not  defama- 
tory in  their  nature,  and  therefere  not  actionable,  even  though  fol- 
lowed by  special  damage."  But  Kelly  v.  Partington*'^,  if  I  may 
say  so,  a  silly  case.  It  turned  on  a  slip  in  the  pleadings.  The  de- 
fendant said  of  the  plaintiff,  "  She  secreted  Is.  6d.  under  the  till," 
and  then  added  significantly,  "  These  are  not  times  to  be  robbed." 
This  was  clearly  an  insinuating  of  felony.  Verdict  for  the  plain- 
tiff, damages  Is.  On  taxation  the  master  declined  to  allow  the 
plaintiff  more  costs  than  damages,  in  accordance  with  the  statute 
of  James  I.,  then  in  force.  The  plaintiff's  counsel,  Sir  John 
Campbell,  S.  G.,  thereupon  argued  that  the  second  count  was  not 
actionable  without  proof  of  special  damage,  and  so  that  statute 
would  not  apply ;  and  succeeded  in  getting  a  rule  for  his  costs. 
For  it  turned  out  that  the  pleader  had  run  the  words  together  so 
that  it  appeared  on  the  record  that  the  charge  against  the  plaintiff 
was  this  :  "  She  secreted  Is.  del.  under  the  till  ;  stating,  these  are 
not  times  to  be  robbed."  There  was  no  innuendo  stating  whose 
money  it  was,  but  there  was  an  allegation  of  special  damage  that  in 
consequence  one  Stenning  had  refused  to  take  the  plaintiff  into  his 
service.  The  Court  was  therefore  pleased  to  take  the  words  as 
spoken  in  praise  of  the  plaintiff,  i.  e.,  as  importing  merely  that  the 
plaintiff  exercised  great  caution,  and  was  very  careful  of  her  own 
money,  even  of  small  amounts  of  it,  for  fear  of  being  robbed.  Sir 
James  Scarlett  took  advantage  of  this  flaw  and  succeeded  in  arrest- 
ing judgment.     For  it  followed,  of  course,  that  Stenning's  refusal  to 

(141) 


70  DEFAMATORY    WORDS. 

take  the  plaintiff  into  his  service,  because  the  defendant  had  praised 
her,  was  unreasonable,  and  not  the  natural  or  necessary  consequence 
of  the  defendant's  words.  And  the  only  decision  in  the  case  was 
that  the  special  damage  was  too  remote  ;  and  a  very  harsh  decision 
this  seems  to  be,  in  these  days  when  pleadings  are  so  easily 
amended.  The  Solicitor  General  could  not  now  go  back  and  argue 
that  the  words  amounted  to  a  charge  of  felony  and  were  actionable 
2>er  se  ;  for  on  the  argument  of  the  previous  rule  he  had  been  only  too 
successful  in  proving  that  the  words  were  not  actionable  without 
proof  of  special  damage.  He  was  driven  therefore  to  contend  that, 
if  praise  produced  special  damage,  praise  was  actionable  ;  an  argu- 
[*  91]  ment  with  which  the  Coitrt  appeared  much  amused.  Little- 
dale,  J.,  puts  him  a  case  (p.  648),  "Suppose  a  man  had  a  relation 
of  a  penurious  disposition,  and  a  third  person  knowing  that  it  would 
injure  him  in  the  opinion  of  that  relation,  tells  the  latter  a  generous 
act  which  the  first  had  done,  by  which  he  induces  the  relation  not 
to  leave  him  money,  would  that  be  actionable  ?  "  And  Sir  John 
Campbell  answers,  "If  the  wrords  were  spoken  falsely  with  intent 
to  injure,  they  would  be  actionable."  And  surely  he  is  right  ; 
though  one  sees  the  strange  position  the  plaintiff  would  be  com- 
pelled to  adopt.  He  wTould  have  to  come  forward  in  Court  and 
declare,  "  I  am  not  generous,  I  am  really  very  mean."  It  would  be 
difficult  also  to  prove  the  intent  with  which  the  words  were  spoken. 
But  if  a  malicious  intent  be  clear,  the  damage  is  not  too  remote, 
for  the  defendant  contemplated  it  ;  and  the  speaking  of  the  words 
was  wrongful  because  done  maliciously,  falsely,  and  with  intent  to 
injure  the  plaintiff  ;  so  here  is  et  damnum  et  injuria.  Lord  Den- 
man's  judgment,  be  it  observed,  turned  almost  entirely  on  the 
absence  of  any  innuendo  ;  that  of  Taunton,  J.,  on  the  remoteness 
of  the  damage  ;  while  Littledale  and  Patteson,  JJ.,  concurred  in  a 
proposition,  which,  with  all  submission,  I  cannot  understand,  that 
"  to  make  the  speaking  of  the  words  wrongful,  they  must  in  their 
nature  be  defamatory"  (p.  651).  If  in  a  small  country  town  where 
political  or  religious  feeling  runs  very  high,  I  maliciously  dis- 
seminate a  report,  false  to  my  knowledge,  that  a  certain  tradesman 
is  a  radical  or  a  dissenter,  knowing  that  the  result  will  be  to  drive 
away  his  customers,  and  intending  and  desiring  that  result,  then,  if 
such  result  follows,  surely  I  am  liable  for  damages  in  an  action  on 
the  case,  if  not  in  an  action  of  slander.  And  yet  such  words  are 
not  in  their  nature  defamatory  ;  for  many,  I  understand,  glory  in 
such  titles.  This  decision  (or  dictum)  in  Kelly  v.  JPartinr/ton,  was 
approved  and  adopted  in  Sheakan  v.  Ahearne  (1875),  Ir.  Rep.  9  C. 
L.  412.  But  there,  too,  this  was  not  the  real  ground  of  the  judgment 
of  the  Court ;  their  decision  turned  on  a  variance  between  the 
words  as  pleaded  and  the  evidence  at  the  trial.  In  Miller  v.  David, 
L.  R.  9  C.  P.  126  ;  43  L.  J.  C.  P.  84  ;  22  W.  R.  332  ;  30  L.  T.  58, 
on  the  other  hand,  the  Court  treat  the  point  as  still,  at  least,  an 
open  question  : — "  It  is  not  necessary  to  consider  the  question  which 
was  suggested  on  the  argument,  whether  words  not  in  themselves 
actionable  or  defamatory,  spoken  iinder  circumstances  and  to  per- 
sons likely  to  create  damage  to  the  subject  of  the  words,  are,  when 

(142) 


WORDS    CAUSING    SPECIAL    DAMAGE.  71 

the  damage  follows,  ground  of  action.  The  judgment  of  Lord 
Wensleydale  in  Lynch  v.  Knight  and  wife,  9  H.  L.  C.  600,  appears 
in  favour  of  the  affirmative  of  this  question.  But  it  is  not  neces- 
sary for  us,  for  the  reasons  given,  to  express  any  [*  92]  opinion 
ii} ion  it."  Ao-ain,  in  Western  Counties  Manure  Co.  v.  Laices 
Chemical  Manure  Co.,  L.  R.  9  Exch.  223  ;  43  L.  J.  Ex.  171  ;  Pol- 
lock, B.,  cites  with  approval  and  acts  upon  "  the  general  rule  laid 
down  as  to  such  actions  in  Comyns'  Digest,  where  it  is  said  that  an 
action  lies  when  special  damage  is  shown."  So,  too,  in  Hiding  v. 
Smith,  1  Ex.  Div.  96,  Huddleston,  B.,  says,  "The  declaration  when 
amended  would  stand  thus  :  that  the  plaintiff  carried  on  business 
as  a  grocer  and  draper,  and  was  assisted  in  the  conduct  of  his 
business  by  his  wife,  and  that  the  defendant  falsely  and  maliciously 
published  of  the  plaintiff's  wife  in  relation  to  the  business  that  she 
had  committed  adultery,  whereby  the  plaintiff  was  injured  in  his 
business  and  sustained  special  damage.  I  think  it  clear  that  on  a 
"declaration  so  framed  an  action  might  be  maintained."  The  name 
of  the  wife  as  a  party  to  the  action  had  been  previously  struck  out  ; 
and  the  words  were  not  defamatory  of  the  husband,  for  they  in  no 
way  refer  to  him.  And  in  the  same  case  (p.  94),  Kelly,  C.  B.,  says, 
"  Here  the  statement  was  that  the  wife  of  the  plaintiff  was  guilty 
of  adultery,  and  it  is  the  natural  consequence  of  such  a  statement 
that  persons  should  cease  to  resort  to  the  shop.  Supposing  the 
statement  made  not  to  be  slander,  but  something  else  calculated  to 
injure  the  shopkeeper  in  the  way  of  his  trade,  as,  for  instance,  a 
statement  that  one  of  his  shopmen  was  suffering  from  an  infectious 
disease,  such  as  scarlet  fever,  this  would  operate  to  prevent  people 
coming  to  the  shop  ;  and  whether  it  be  slander  or  some  other  state- 
ment which  has  the  effect  I  have  mentioned,  an  action  can,  in  my 
opinion,  be  maintained  on  the  ground  that  it  is  a  statement  made 
to  the  public  which  would  have  the  effect  of  preventing  their 
resorting  to  the  shop  and  buying  goods  of  the  owner."  And  see 
Level's  case,  Cro.  Eliz.  289,  ante,  p.  79  ;  Baldwin  v.  Flower,  3  Mod. 
120,  post,  p.  400. 

I  conclude,  therefore,  that  if  a  defendant  either  knows  or  ought 
to  know  that  certain  special  damage  will  follow  from  his  words, 
and  speaks  those  words,  desiring  and  intending  that  such  damage 
shall  follow,  or  recklessly  indifferent  whether  such  damage  follows 
or  not  therefrom,  then  if  the  words  be  false,  and  if  such  damage 
does  in  fact  follow  directly  from  their  use,  an  action  on  the  case 
will  lie  against  him  for  such  damage,  whatever  be  the  nature  of  the 
words.  (Barley  v.  Walford,  9  Q^B.  197  ;  15  L.  J.  Q.  B.  369  ;  10 
Jur.  917,  ante,  p.  16  ;  Green  v.  Button,  2  C.  M.  &  R.  707,  post,  p. 
145.) 


(143) 


CHAPTER  III. 

CONSTRUCTION    AND    CERTAINTY.  t*93] 

Construction  is  the  correct  interpretation  of  words,  the  giving 
them  their  true  meaning,  the  method  of  ascertaining  the  sense  in 
which  they  were  understood  by  those  who  first  heard  or  read 
them.  • 

What  meaning  the  speaker  intended  to  convey  is  immaterial  in 
all  actions  of  defamation.  (Ilaire  v.  Wilson,  3  B.  &  C.  645.)  He 
may  have  spoken  without  any  intention  of  injuring  the  plaintiff's 
reputation,  but  if  he  has  in  fact  done  so,  he  must  compensate  the 
plaintiff.  He  may  have  meant  one  thing  and  said  another  :  if  so, 
he  is  answerable  for  so  inadequately  expressing  his  meaning.  If  a 
man  in  jest  conveys  a  serious  imputation,  he  jests  at  his  peril.  (Per 
Smith,  B.,  in  Donoghue  v.  Hayes  (1831),  Hayes  (Irish  Exch.)  at 
p.  266).  ■  Or  he  may  have  used  ambiguous  language  which  to  his 
mind  was  harmless,  but  to  which  the  bystanders  attributed  a  most 
injurious  meaning  :  if  so  he  is  liable  for  the  injudicious  phrase  he 
selected.  What  was  passing  in  his  own  mind  is  immaterial,  save 
in  so  far  as  his  hearers  could  preceive  it  at  the  time.  Words 
cannot  be  construed  according  to  the  secret  intent  of  the  speaker. 
(HanJcinson  v.  Bilby,  16  M.  &  W.  445  ;  2  C.  &  K.  440.)  "The 
slander  and  the  damage  consist  in  the  apprehension  of  the  hearers." 
(Per  Cur.  in  Fleetwood  v.  Curley  (1619),  Hobart,  268). 

The  question  therefore  is  always  :  How  did  those  to  [*94]  whom 
the  words  were  originally  published  understand  them  ?  We  must 
assume  that  they  were  persons  of  ordinary  intelligence.  We  must 
assume,  too,  that  they  gave  to  ordinary  English  words  their 
ordinary  English  meaning,  to  local  or  technical  phrases  their  local 
and  technical  meaning.  That  being  done,  what  meaning  did  the 
whole  passage  convey  to  an  unbiased  mind  ? 

This  is  clearly  rather  a  question  for  the  jury  than  for  the  judge. 
And  accordingly  by  the  32  Geo.  III.  c.  60  (Fox's  Libel  Act)  it  is 
expressly  provided  that  in  all  criminal  proceedings  for  libel,  the  jury 
are  to  decide  the  question  of  libel  or  no  libel,  subject  to  the 
direction  of  the  judge.  In  civil  proceedings  for  libel,  the  practice 
is,  and  always  was,  the  same  (Baylis  v.  Lawrence,  11  A.  &  E.  920  ; 
3  Perry  &  D.  526  ;  4  Jur.  652),  save  that  here  if  the  judge  thinks 
that  the  words  cannot  possibly  bear  a  defamatory  meaning,  he  may 
shorten  the  proceedings  by  a  nonsuit.  "  It  is  only  when  the  judge 
is  satisfied  that  the  publication  cannot  be  a  libel,  and  that,  if  it  is 
found  by  the  jury  to  be  such,  their  verdict  will  be  set  aside,  that  he 
is  justified  in  withdrawing  the  question  from  their  cognizance." 
(Per  Kelly,  C.  B.,L.  R.  4  Exch.  288  ;  and  see  Fray  v.  Fray,  17  C. 

(144) 


JUDGE    AND    JURY.  73 

B.  N.  S.  603  ;  34  L.  J.  C.  P.  45  ;  10  Jur.  N.  S.  1153  ;  Ttacy  v. 
McKenna,  Ir.  R.  4  C.  L.  374  ;  Hunt  v.  Goodlake,  43  L.  J.  C.  P. 
54  ;  29  L.  T.  472  ;  //«?•£  and  another  v.  IfW/,  2  C.  P.  D.  146  ;  46 
L.  J.  C.  P.  227  ;  25  W.  R.  373.) 

If,  however,  the  judge  considers  that  words  are  reasonably  sus- 
ceptible of  a  defamatory  meaning  as  well  as  an  innocent  one,  it  will 
then  be  a  question  for  the  jury  which  meaning  the  words  would 
convey  to  ordinary  Englishmen  who  heard  or  read  them  without 
any  previous  knowledge  of  the  circumstances  to  which  they  relate. 
(Fisher  v.  Clement,  10  B.  &  C.  472  ;  5  Man.  &  Rv.  730  ;  Hankin&on 
v.  BUby,  16  M.  &  W.  442  ;  2  C.  &  K.  440.)  The  judge  is  in  no 
way  bound  to  state  to  the  jury  [his  own  opinion  on  the  point  ;  it 
would,  in  fact,  be  wrong  for  him  to  lay  down  as  a  matter  of  law, 
that  the  publication  complained  of  was,  [*95]  or  was  not,  a  libel. 
(Baylis  v.  Lawrence,  11  A.  &  E.  920.)  The  proper  course  is  for 
the  judge  to  define  what  is  a  libel  in  point  of  law,  and  to  leave  it 
to  the  jury  to  say  whether  the  publication  in  question  falls  within 
that  definition.  (Parmieter  v.  Coupland  and  another,  6  M.  &  W. 
105  ;  9  L.  J.  Ex.  202  ;  4  Jur.  701.)  And  this  is  a  question  pre- 
eminently for  the  jury  ;  whichever  way  they  find,  the  Court  will 
not  disturb  the  verdict,  if  the  question  was  properly  left  to  them. 

So,  too,  in  cases  of  slander,  the  judge  usually  decides  whether  the 
words  are,  or  are  not,  actionable  per  se,  and  whether  the  special 
damage  assigned  is,  or  is  not,  too  remote.  If  the  defendant's  words 
cannot  reasonably  bear  the  meaning  ascribed  to  them  by  the  innu- 
endo, and  the  judge  is  clearly  of  opinion  that  the  words  without 
that  meaning  are  not  actionable,  he  will  stop  the  case.  So,  too,  if 
the  words  even  with  the  alleged  meaning  are  not  actionable  (though 
pleaders  seldom  err  on  that  side).  But  in  all  other  cases,  where 
there  is  any  reasonable  doubt  as  to  the  true  construction  of  the 
words,  the  judge  leaves  the  question  to  the  jury.  All  circumstances 
which  were  apparent  to  the  bystanders  at  the  time  the  words  were 
uttered  should  be  put  in  evidence,  so  as  to  place  the  jury  as  much  as 
possible  in  the  position  of  such  bystanders  ;  and  then  it  is  for  the 
jury  to  say  what  meaning  such  words  would  fairly  have  conveyed 
to  their  minds.  And  their  finding  is  final  and  conclusive  on  the 
point  ;  the  Court  will  not  disturb  the  verdict,  unless  it  be  plainly 
perverse. 

Formerly,  however,  the  practice  was  very  different.  After  a 
verdict  for  the  plaintiff,  the  defendant  constantly  moved  in  arrest 
of  judgment,  on  the  ground  that  a  defamatory  meaning  was  not 
shown  on  the  record  with  sufficient  precision,  or,  as  it  soon  came  to 
be,  on  the  ground  that  it  was  just  possible,  in  spite  of  the  record,  to 
give  the  words  an  innocent  construction.  For  it  was  said  to  be  a 
maxim  that  words  were  to  betaken  in  mitiori sensu  whenever  there 
were  two  senses  in  which  they  could  be  taken.  And  in  these  early 
times  the  Courts  thought  it  their  duty  to  discourage  actions  of 
[*96]  slander.  They  would,  therefore,  give  an  innocent  meaning  to 
the  words  complained  of,  if  by  any  amount  of  legal  ingenuity  such  a 
meaning  could  be  put  upon  them  ;  and  would  altogether  disregard 

(145) 


74  CONSTRUCTION    AND    CERTAINTY. 

the  plain  and  obvious  signification  which  must  have  been  conveyed 
to  bystanders  ignorant  of  legal  technicalities.  Thus  where  a  married 
woman  falsely  said,  "  You  have  stolen  my  goods,"  and  the  jury 
found  a  verdict  for  the  plaintiff,  the  Court  entered  judgment  for  the 
defendant,  on  the  ground  that  a  married  woman  could  have  'no 
goods  of  her  own,  and  that  therefore  the  words  conveyed  no  charge 
of  felony.  [Anon.,  Pasch.  11  Jac.  I.  ;  1  Roll.  Abr.  746;  now  over- 
ruled by  Stamp  and  wife  v.  White  caul  wife,  Cro.  Jac.  600.)  Again, 
where  the  words  complained  of  were,  "  He  hath  delivered  false 
evidence  and  untruths  in  his  answer  to  a  bill  in  Chancery,"  it  was 
held  that  no  action  lay  ;  for  though  every  answer  to  a  bill  in  Chan- 
cery was  an  oath,  and  was  a  judicial  proceeding,  still  in  most 
Chancery  pleadings  "  some  things  are  not  material  to  what  is  in 
dispute  between  the  parties,"  and  "  it  is  no  perjury,  although  such 
things  are  not  truly  answered  !  "  {Mitchell  v.  Brown,  3  Inst.  167  ; 
1  Roll.  Abr.  70.)  For  further  instances  of  such  refinements,  see 
Peake  v.  Pollard,  Cro.  Eliz.  214;  Cox  v.  Humphrey,  id.  889  ;  and 
Holland  x.  Stoner,  Cro.  Jac.   315. 

But  in  the  days  of  Charles  II.,  the  Court  of  Common  Pleas  decided 
in  a  case  of  scandalum  magnatum  [Lord  Toumshend  v.  Dr.  Hughes 
(1676),  2  Mod.  159)  that  "  words  should  not  be  construed  either  in 
a  rigid  ,or  mild  sense,  but  according  to  the  general  and  natural  mean- 
ing, and  agreeable  to  the  common  understanding  of  all  men."  And 
this  decision  soon  became  law.  In  Naben  v.  Miecock  (1683),  Skin. 
183,  Levinz,  J.,  said  he  was  "  for  talcing  words  in  their  natural, 
genuine  and  usual  sense  and  common  understanding,  and  not  accord- 
ing to  the  witty  construction  of  lawyers,  but  according  to  the 
apprehension  of  the  bystanders."  (And  see  Somers  v.  House,  Holt, 
39;  Skin.  364;  and  Burgess  v.  Bracher,  8  Mod.  238.)  In  1722, 
Fortescue,  J.,  declared  in  Button  v.  Hayward  et  ux.  (8  Mod.  24), 
"The  maxim  for  expounding  words  in  mitiori  sensu  has  for  a  great 
while  been  exploded,  near  fifty  or  sixty  years."  In  Peake  v.  Oldham 
(Cowp.  277,  278)  Lord  Mansfield  commented  severely  on  the  constant 
practice  of  moving  in  arrest  of  judgment  after  verdict  found:  "What? 
After  verdict,  shall  the  Court  be  guessing  and  inventing  a  mode  in 
which  it  might  be  barely  possible  for  these  words  to  have  been 
spoken  by  the  defendant,  without  meaning  to  charge  the  plaintiff 
with  being  guilty  of  murder?  Certainly  not.  Where  it  is  clear 
that  words  are  defectively  laid,  a  verdict  will  not  cure  them.  But 
[*97]  where,  from  their  general  import,  they  appear  to  have  been 
spoken  with  a  view  to  defame  a  party,  the  Court  ought  not  to  lie 
industrious  in  putting  a  construction  upon  them  different  from 
what  they  bear  in  the  common  acceptation  and  meaning  of  them." 
And  his  Lordship  quoted  a  dictum  of  Parker,  C.  J.,  in  Ward  v. 
Reynolds,  Pasch,  12  Anne,  B.  R.  to  the  same  effect.  So  in  Harri- 
son v.  Thornborough,  10  Mod.  197,  the  Court  says:  "The  rule 
that  has  now  prevailed  is  that  words  are  to  be  taken  in  that  sense 
that  is  most  natural  and  obvious,  and  in  which  those  to  whom  they 
are  spjoken  will  be  sure  to  understand  them."  (See  also  the  remarks 
of  De  Grey,  C.  J.,  in  B.  v.  Home,  2  Cowp.  682-689  ;  of  Buller,  J., 

(146) 


NATURAL    CONSTRUCTION.  75 

in  R.  v.  lYatson  and  others,  2  T.  R.  206  ;  and  the  judgments  in 
Woolnoth  v.  Meadows,  5  East,  403  ;  2  Smith,  28.) 

And  such  is  now  the  law.  The  Courts  no  longer  strain  to  find 
an  innocent  meaning  for  words  prima  facie  defamatory,  neither 
will  they  put  a  forced  construction  on  words  which  may  fairly  be 
deemed  harmless.  "  Formerly,"  says  Lord  Ellenborough  in  2  Camp. 
403,  "  it  was  the  praetice  to  say  that  words  were  to  be  taken  in  the 
more  lenient  sense  ;  but  that  doctrine  is  now  exploded  :  they  are 
not  to  be  taken  in  the  more  lenient  or  more  severe  sense,  but  in  the 
sense  which  fairly  belongs  to  them." 

And,  again,  in  Roberts  v.  Camden,  9  East,  95,  the  same  learned 
judge  says  :  "  The  rule  which  once  prevailed,  that  words  are  to  be 
understood  in  mitiori  sensu,  has  been  long  ago  superseded  ;  and 
words  are  now  to  be  construed  by  Courts,  as  they  always  ought  to 
have  been,  in  the  plain  and  popular  sense  in  which  the  rest  of  the 
world  naturally  understand  them."  Now,  therefore,  the  only  question 
for  the  judge  or  the  Court  is  whether  the  words  are  capable  of  the 
defamatory  meaning  attributed  to  them  ;  if  they  are,  then  it  is  for 
the  jury  to  decide  what  is  in  fact  the  true  construction. 

So  long  as  the  defendant's  words  are  not  absolutely  unintelligible, 
a  jury  will  judge  of  the  meaning  as  well  as  other  readers  or  hearers. 
All  perplexity  and  obscurity  will  disappear  under  the  narrow  exam- 
ination which  the  words  will  receive  in  a  Court  of  law.  It  matters 
not  whether  the  defamatory  words  be  in  English  or  in  any  other 
language  that  is  understood  in  England,  whether  they  be  spelt 
correctly  or  incorrectly,  whether  the  phrase  be  grammatical  or  not, 
whether  cant  or  slang  terms  be  employed,  or  the  most  refined  and 
elegant  diction.  (R.  v.  Edgar,  2  Sess.  Cas.  29  ;  5  Bac.  Abr.  199.) 
The  insinuation  may  be  indirect,  and  the  allusion  obscure  ;  it  may 
be  put  as  a  question  or  as  an  "  on  dit  ;  "  the  language  may  be 
ironical,  figurative,  or  allegorical  ;  still,  if  there  be  a  meaning  in 
the  words  at  [*98]  all,  the  Court  will  find  it  out,  even  though  it  be 
disguised  in  a  riddle  or  in  hieroglyphics.  In  all  cases  of  ambiguity 
it  is  purely  a  question  for  the  jury  to  decide  what  meaning  the 
words  would  convey  to  persons  of  ordinary  intelligence.  (  Grant 
v.  Yates  (C.  A.),  2  Times  L.  R.  368.) 

And  before  answering  that  question  the  jury  should  well  weigh 
all  the  circumstances  of  the  case,  the  occasion  of  speaking,  the 
relationship  between  the  parties,  &c.  Especially  they  should  con- 
sider the  words  as  a  whole,  not  dwelling  on  isolated  passages,  but 
giving  its  proper  weight  to  every  part.  (Per  Tindal,  C.  J.,  in 
SMpley  v.  Todhunter,  8  C.  &  P.  680.)  The  sting  of  a  libel  may 
sometimes  be  contained  in  a  word  or  sentence  placed  as  a  heading 
to  it.  The  defendant  will  often  be  held  liable  merely  in  consequence 
of  such  prefix,  where,  without  it,  he  would  have  had  a  perfect 
answer  to  the  action.  So,  too,  a  word  added  at  the  end  may 
altogether  vary  the  sense  of  the  preceding  passage.  The  defendant 
is,  therefore,  entitled  to  have  the  whole  of  the  alleged  libel  read  as 
part  of  plaintiff's  case.  (Cooke  v.  Hughes,  R.  &  M.  112.)  And 
for  the  purpose  of  showing  that  what  he  wrote  is  no  libel,  and  will 
not  bear  the   construction  which  plaintiff  seeks  to  put  upon  it,  the 

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76  CONSTRUCTION    AND    CERTAINTY. 

defendant  may  give  in  evidence  any  other  passages  in  the  same 
publication  which  plainly  refer  to  the  same  matter,  or  which  qualify 
or  explain  the  passage  sued  on.  (JZ.  v.  Lambert  and  Perry,  2 
Camp.  400;  .31  Howell  St.  Tr.  340  ;  Darby  v.  Ouseley,  25  L.  J. 
Ex.  229  ;  1  II.  &  N.  1  ;  2  Jur.  N.  S.  497  ;  Bolton  v.  O'Brien,  16 
L.  R.  Ir.  97.) 

So,  too,  with  a  slander  ;  very  often  the  words  immediately  preced- 
ing or  following  may  much  modify  those  relied  on  by  the  plaintiff. 
(Bittridge's  Case,  4  Rep.  19  ;  Thompson  v.  Bernard,  1  Camp,  48.) 
When  the  language  sued  on  is  ambiguous,  and  some  extrinsic 
evidence  is  necessary  to  construe  it,  evidence  may  even  be  given  of 
other  libels  or  slanders  published  by  the  defendant  of  the  plaintiff, 
which  explain  or  qualify  that  sued  on.  But  such  evidence  is  not 
admissible  where  the  meaning  of  the  words  is  clear  and  undisputed. 
{Stuart  v.  Lovell,  2  Stark.  93;  Pearce  v.  Ornsby,  1  M.  &  Rob.  455  ; 
Symmons  v.  Blake,  ib.  477  ;  2  C.  M.  &  R.  416  ;  4  Dowl.  263  ;  1 
Gale,  182  ;  Traill  v.  Deriham,  Times  for  May  4th,  1880.)  And 
when  such  evidence  is  admitted,  the  jury  should  always  be  cautioned 
not  to  give  any  damages  in  respect  of  it.  (Per  Tindal,  C.  J.,  in 
Pearson  v.  Lemaitre,  5  M.  &  Gr.  720  ;  12  L.  J.  Q.  B.  253  ;  7  Jur. 
748  ;  6  Scott,  N.  R.  607.) 

Illustrations. 

The  Observer  gave  a  correct  account  of  some  proceedings  in  the  Insolvent 
Debtors'  Court,  but  it  was  headed  "  Shameful  Conduct  of  an  Attorney."  The 
[*99]  rest  of  the  report  was  held  privileged  ;  but  the  plaintiff  recovered  damages 
for  the  heading. 

Clement  v.  Lewis,  3  Br.  &  B.  297  :  7  Moore,  200  ;  3  B.  &  Aid.  702. 

And  see  Mountney  v.   Watton,  2  B.  &  Ad.  673. 

Bishop  v.  Latimer,  4  L.  T.  775. 

Boydell  v.  Jones,  4M.&W.  446  ;  7  Dowl.  210  ;  1  H.  &  H.  408. 

Harvey  v.  French,  1  Cr.  &  M.  11  ;  2  M.  &  Scott,  591  ;  2  Tyr.  585. 

Lewis  v.  Levy,  E.  B.  &  E.  537  ;  27  L.  J.  Q.  B.  282 ;  4  Jur.  N.  S. 
970. 

Street  v.  Licensed  Victualler's  Society,  22  "W.  R.  553. 

Stanley  v.  Webb,  4  Sandf.  (N.  Y.)  21. 
An  action  was  brought  for  an  alleged  libel,  published  in  the  True  Sun  news- 
paper : — "  Riot  at  Preston. — From  the  Liverpool  Courier. — It  appears  that  Hunt 
pointed  out  Counsellor  Seager  to  the  mob,  and  said,  '  There  is  one  of  the  black 
sheep.'  The  mob  fell  upon  him  and  murdered  him.  In  the  affray  Hunt  had 
his  nose  cut  off.  The  coroner's  inquest  have  brought  in  a  verdict  of  wilful 
murder  against  Hunt,  who  is  committed  to  gaol. — Fudge."  The  plaintiff  con- 
tended that  the  word  "  Fudge  "  was  merely  introduced  with  reference  to  the 
future,  in  order  that  the  defendants  might  afterwards,  if  the  paragraph  were 
complained  of,  be  able  to  refer  to  it,  as  showing  that  they  intended  to  discredit 
the  statement.  Lord  Lyndhurst,  C.  B.,  told  the  jury  that  the  question  was, 
with  what  motive  the  publication  was  made.  It  was  not.  disputed  that  if  the 
paragraph,  which  was  copied  from  another  paper,  stood  without  the  word 
"  Fudge,"  it  would  be  a  libel.  If  they  were  of  opinion  that  the  object  of  the 
paragraph  was  to  vindicate  the  plaintiff's  character  from  an  unfounded  charge, 
the  action  could  not  be  maintained  ;  but  if  the  word  "  Fudge"  was  only  added 
for  the  purpose  of  making  an  argument  at  a  future  day,  then  it  would  not  take 
away  the  effect  of  the  libel.     Verdict  for  the  plaintiff.     Damages,  one  farthing. 

Hunt  v.  Algar  and  others,  6  C.  &  P.  245. 

Of  the  Innuendo. 

In  arriving  at  the  meaning  of  the  defendant's  words,  the  Court 

(148) 


INNUENDO.  77 

and  jury  are  often  materially  assisted  by  an  averment  in  the  plain- 
tiff's statement  of  claim,  called  an  innuendo.  This  is  a  statement 
by  the  plaintiff  of  the  construction  which  he  puts  upon  the  words 
himself,  and  which  he  will  endeavour  to  induce  the  jury  to  adopt 
at  the  trial.  Where  a  defamatory  meaning  is  apparent  on  the  face 
of  the  libel  itself,  no  innuendo  is  necessary  ;  though  even  there  the 
pleader  occasionally  inserts  one  to  heighten  the  effect  of  the  words. 
But  where  the  words  prima  facie  are  not  actionable,  an  innuendo  is 
essential  to  the  action.  It  is  necessary  to  bring  out  the  latent  inju- 
rious meaning  of  the  defendant's  [*  100  J  words  ;  and  such  innu- 
endo must  distinctly  aver  that  the  words  bear  a  specific  actionable 
meaning.     ( Cox  v.  Cooper,  12  W.  R.  75  ;  9  L.  T.  329.) 

It  is  the  office  of  an  innuendo  to  define  the  defamatory  meaning 
which  the  plaintiff  sets  on  the  words  ;  to  show  how  they  come  to 
have  that  defamatory  meaning  ;  and  also  to  show  how  they  relate 
to  the  plaintiff,  whenever  that  is  not  clear  on  the  face  of  them. 
But  an  innuendo  may  not  introduce  new  matter,  or  enlarge  the 
natural  meaning  of  words.  It  must  not  put  upon  the  defendant's 
words  a  construction  which  they  will  not  bear.  It  cannot  alter  or 
extend  the  sense  of  the  words,  or  make  that  certain  which  is  in  fact 
uncertain.  [James  v.  JRutlech,  4  Rep.  17.)  If  the  words  are  incap- 
able of  the  meaning  ascribed  to  them  by  the  innuendo,  and  are 
prima  facie  not  actionable,  the  judge  at  the  trial  will  stop  the  case. 
If,  however,  the  words  are  cap>able  of  the  meaning  ascribed  to  them, 
however  improbable  it  may  appear  that  such  was  the  meaning  con- 
veyed, it  must  be  left  to  the  jury  to  say  whether  or  no  the}?-  were 
in  fact  so  understood.  [Hunt  v.  Goodlake,  43  L.  J.  C.  P.  54  ;  29 
L.  T.  472  ;  Broome  v.  Gosden,  1  C.  B.  728.)  This  is  so  in  Amer- 
ica. {Patch  v.  Tribune  Association,  38  Hun.  (45  N.  Y.  Supr.  Ct.) 
368.) 

An  innuendo  now  requires  no  prefatory  averment  to  support  it. 
(Common  Law  Procedure  Act,  1852,  s.  61.)  The  libel  or  slander 
sued  on  must  of  course  be  set  out  verbatim  in  the  statement  of  claim  ; 
the  innuendo  usually  follows  it  immediately.  Such  a  pleading  is  to 
be  considered  as  two  counts  under  the  old  system,  one  with  an 
innuendo  and  one  without.  And  if  the  plaintiff  can  show  a  good 
cause  of  action,  either  with  or  without  the  alleged  meaning,  he  is 
entitled  to  recover.  (Per  Blackburn,  J.,  in  Watkin  v.  Hall,  L.  R. 
3  Q.  B.  402  ;  37  L.  J.  Q.  B.  125  ;  16  W.  R.  857  ;  18  L.  T.  561.) 

The  defendant  is  in  no  way  embarrassed  by  the  presence  of  the 
innuendo  in  the  statement  of  claim  :  in  fact  it  is  to  him  an  advantage. 
He  can  either  deny  that  he  ever  spoke  the  words,  or  he  can  admit 
that  he  spoke  them,  but  deny  that  they  conveyed  that  meaning.  He 
can  also  assert  that  the  words  he  spoke  were  true,  either  with  or  with- 
out the  alleged  meaning.  It  will  then  be  for  the  jury  to  say  whether 
[*10l]the  plaintiff's  innuendo  is  borne  out.  If  not,  the  plaintiff  may 
fall  back  upon  the  words  themselves,  and  urge  that,  taken  in  their 
natural  and  obvious  signification,  they  are  actionable  per  se  without 
the  alleged  meaning,  and  that  therefore  his  unproved  innuendo 
may  be  rejected  as  surplusage.  {Harvey  v.  French,  1  Cr.  &  M.  11; 

(149) 


78  CONSTRUCTION    AND    CERTAINTY. 

2  M.  &  Scott,  591  ;  2  Tyrw.  585.)  But  he  cannot  in  the  middle  of 
the  case  start  a  fresh  innuendo  not  on  the  record  ;  he  must  abide  by 
the  construction  he  put  on  the  words  in  his  statement  of  claim,  or 
else  rely  on  their  natural  and  obvious  import.  (Simmons  v.  Mitch- 
ell, 6  App.  Cas.  126  ;  50  L.  J.  P.  C.  11  ;  29  W.  R.  401  ;  43  L.  T. 
710  ;  45  J.  P.  237.)  He  may  not  during  the  trial  set  up  a  third 
construction  of  the  words  different  both  from  their  prima  facie 
meaning  and  from  that  pointed  by  the  innuendo  ;  if  he  win  a  ver- 
dict in  this  way,  the  Court  Avill  grant  a  new  trial  on  the  ground  of 
surprise.  (Hunter  v.  Sharpe,  4  F.  &  F.  983  ;  15  L.  T.  421  ;  liuel 
v.  Tatnell,  29  W.  R.  172  ;  43  L.  T.  507.)  If  the  jury  negative  his 
innuendo,  and  the  words  are  not  actionable  in  their  natural  and 
primary  sense,  judgment  must  pass  for  the  defendant.  (Brembridge 
v.  Latimer,  12  W.  R.  878  ;  10  L.  T.  816  ;  Maguire  v.  Knox,  Ir.  R. 
5  C.  L.  408.) 

Illustrations. 

"  He  hath  forsworn  himself."  These  words  are  not  in  themselves  a  sufficient 
imputation  of  perjury,  because  he  is  not  said  to  have  sworn  falsely  while  giving 
evidence  in  Court.  Hence  an  innuendo  "  before  the  justice  of  assize  "  is  clearly 
bad  ;  for  it  is  not  an  explanation  of  defendant's  words,  but  an  addition  to 
them. 

Anon.,  1  Roll.  Abr.  82. 
Holt  v.  Sholefield,  6  T.  R.  691. 
A  libel 'alleged  that  a  gentleman  was  on  a  certain  night  hocussed  and  robbed 
of  £40,  in  the  plaintiff's  public-house.  An  innuendo  "  meaning  thereby  that 
the  said  public-house  was  the  resort  of,  and  frequented  by,  felons,  thieves, 
and  depraved  and  bad  characters,"  after  verdict  for  the  defendant,  was  held 
too  wide. 

Broome  v.    Cosden,  1  C.  B.  728. 
Clarke's  Case  de  Dorchester  (1619),  2  Rolle's  Rep.  136. 
The  words  "  I  was  speaking  to  a  lady  about  Mrs.  Y.'s  case  "  cannot  support 
an  innuendo,  meaning  thefeby  that  the'plaintiff  (Mrs.  Y.)  had  been  guilty  of 
adultery. 

York  v.  Johnson,  116  Mass.  482. 
Libel  complained  of: — "  He  has  become  so  inflated  with  self-importance  by 
the  few  hundreds  made  in  my  service — God  only   knows  whether  honestly  or 
otherwise — that,"   &c.     Innuendo,    "  meaning   thereby    to  insinuate  that   the 
plaintiff  had  conducted  himself    in  a  dishonest  manner  in   the  service  of   the 
•defendant."     The  Court  refused  to  disturb  a  verdict  for  the  plaintiff. 
Clegg  v.  Laffer.  3  Moore  &  Sc.  727  ;  10  Bing.  250. 
The  defendant  said,  "  Master  Barham  did  burn  my  barn  with  his  own  hands, 
and  none  but  he."    At  that  date  it  was  not  felony  to  burn  a  barn,  _  unless  it 
[*102]  were  either  full  of  corn  or  parcel  of  a  mansion-house.     An  innuendo, 
"  a  barn  full  of  corn,"  was  held  tco  wide.     "  That  is  not,"  says  De  Grey,  C.  J., 
commenting  on  this  case  in  Cowp.  684,   "  an  explanation  of  what  was   said 
before,  but  an  addition  to  it.     But  if  in  the  introduction  it  had  been  averred, 
that  the  defendant  had  a  barn  full  of  corn,  and  that   in  a  discourse  about  the 
barn,  the  defendant  had  spoken  the  words  charged  in  the  libel  of  the  plaintiff  ; 
an  innuendo  of  its  being  the  barn  full  of  corn  would  have  been  good.     For  by 
coupling  the  innuendo  in  the  libel  with  the  introductory  averment,  '  his  barn 
full  of  corn,'  it  would  have  made  it  compleat." 
Barham's  Case,  4  Rep.  20  ;  Yelv.  21. 

See  Capital  and  Counties  Bank  v.  Hemty  &  Sons  (C.  A.),  5  C.  P.  D. 

514;  49  L.  J.  C.   P.  830  ;  28  W.  R.  851  ;   43  L.   T.   651  ;    H.  L.  7 

App.  Cas.  741  ;  52  L.  J.  Q.  B.  232  ;  31  W.  R.  157  ;  47  L.  T.  662 ; 

47  J.  P.  214. 

An  information  was  filed  against  a  Nonconformist  minister  for  a  libel  upon 

"the  bishops"  contained  in  a  book,  called  "A  Paraphrase   upon  the  New 

(150) 


INNUENDO.  79 

Testament."     An  innuendo,  "  the  bishops  of  England,"  was  held  to  be  allow- 
able, if  from  the  nature  of  the  libel  this  was  clearly  what  was  meant. 

B.  v.  Baxter  (1685),  3  Mod.  69. 
The  libel  accused  a  gentleman  of  saying,  "  lie  could  see  no  probability  of  the 
Avar's  ending  with  France,  until  the  little  gentleman  on  the  other  side  of  the 
water  was  restored  to  his  rights."  Innuendo,  "  The  Prince  of  Wales,"  allowed 
to  be  good  ;  in  fact  the  Court  thought  the  meaning  was  clear  without  any 
innuendo. 

Anon.  (1707),  11  Mod.  99. 

R.  v.  Matthews  (1719),  15  How.  St.  Tr.  1323. 
Libel  : —  ''  The  mismanagements  of  the  navy  have  been  a  greater  tax  upon 
the  merchants  than  the  duties    raised  by   government."     An   innuendo,  "the 
royal  navy  of  this  kingdom,"  held  not  too  wide. 

R.  v.  Tutehin  (1704),  14  How.    St.  Tr.  1095  ;  5  St.  Tr.  527  ;  2  Ld. 
Raym.  1061  ;  Salk.  50  ;  6  Mod.  268. 

R.  v.  Home  (1777),  Cowp.  672  ;  11  St.  Tr.  264;  20  How.  St.  Tr,  651. 
The  words  "  We  have  no  doubt  sufficient  information  will  be  obtained  for  a 
strong  case  to  lay  before  the  Home  Secretary  to  enable  that  functionary  to 
cause  it  to  be  intimated  to  the  suspected  party  that  his  presence  here  can  be 
dispensed  with,  as  far  as  it  may  be  attended  with  danger  to  himself,"  were  held 
in  the  Exchequer  Chamber  not  to  support  an  innuendo,  meaning  thereby  that 
the  prosecutor  was  suspected  of  having  had  committed  some  crime  which  would 
bring  his  life  into  danger  from  the  laws  of  England. 

Gregory  v.  The  Queen  (No.  2),  5  Cox,  C.  C.  252. 
The  words  complained  of  in  their  natural  sense  conveyed  only  suspicion,  and 
were  therefore  not  actionable  ;  there  were  innuendoes,  but  none  of  them  stated 
that  the  words  imputed  felony,  though  there  was  a  prefatory  averment  stating 
that  defendant's  motive  was  to  cause  it  to  be  believed  that  plaintiff  had  been 
guilty  of  felony.  Held,  that  this  prefatory  averment  could  not  be  substituted 
for  the  innuendoes  whereby  plaintiff  undertook  to  give  the  meaning  of  the 
words  spoken. 

Simmons  v.  Mitchell,  6  App.  Cas.  156  ;  50  L.  J.  P.  C.  11 ;  29  W.  R, 
401  ;  43  L.  T.  710  ;  45  J.  P.  237. 
The  alleged  libel  was  as  follows  : — "Notice, — any  person  giving  information 
[*  103]  were  any  property  may  be  found  belonging  to  H.  Gr.  (meaning  the 
plaintiff),  a  prisoner  in  the  King's  Bench  prison,  but  residing  within  the  rules 
thereof,  shall  receive  five  per  cent,  upon  the  goods  recovered,  for  their  trouble, 
by  applying  at  Mr.  L.,"  &c.  Innuendo,  that  the  plaintiff  had  been  and  was 
guilty  of  concealing  his  property  with  a  fraudulent  and  unlawful  intention. 
Held,  on  general  demurrer,  that  the  innuendo,  unsupported  by  any  prefatory 
averment,  was  too  large  ;  and  that  the  words,  in  themselves,  were  not  action- 
able. 

Gompertz  v.   Levy,  9  A.  &  E.  282  ;  2  Jur.  1013  ;   1  P.  &.  D.   214  ; 

1  W.  W.  &H.*728. 
Wheeler  v.  Haynes,  9  A.  &  E.  2S6,  note  ;  1  W.  W.  C  II.  645  ;  1  P. 

&  D.  55. 
Capel  and  others  v.  Jones,  4  C.  B.  259  ;  11  Jur.  396. 
Day  v.  Robimon,  1  A.  &  E.  554  ;  4  N.  &  M.  884. 
Adams  v.  Meredew,  2  Y.  &  J.  417  ;  3  Y.  &  J.  219. 
But  all  these  cases  are  overruled  by  the  C.  L.   P.  Act.  1852,  s.  61.   as  inter- 
preted in 

Hemmings  v.  Gasson,  E.  B.  &  E.  346  ;   27  L.  J.  Q.  B.  523  ;  4  Jur. 
N.  S.  834. 
Words  complained  of  : — "  He  is  a  regular  prover  under  bankruptcies."     An 
innuendo,  "  the  defendant  meaning  thereby  that  the  plaintiff  had  proved  and 
was  in  the  habit  of  proving  fictitious  debts  against  the  estates  of  brankrupts,  with 
the  knowledge  that  such  debts  were  fictitious,"  is  now  all  that  is  necessary. 
C.  L.  P.  Act,  1852,  Sched,  B.,  form  33. 
Not  so  formerly. 

Angle  v.  Alexander,  7  Bing.  119  ;1  Cr.  &  J.  143  ;  1  Tyrw.  9  ;  4M. 
&  P.  870,  ante,  p.  80. 

(151) 


80  CONSTRUCTION    AND    CERTAINTY. 

Words  may  be  : — 

(1)  obviously  defamatory  ; 

(2)  ambiguous  :  that  is,  words  which,  though  prima  facie 
defamatory,  are  still  on  the  face  of  them  susceptible  of  an 
innocent  meaning  ; 

(3)  neutral  ;  i.  e.,  words  which  are  meaningless  till  some  explan- 

ation is  given;  such  are  slang  expressions,  words  in  a 
foreign  language,  words  used  in  some  special,  local,  techni- 
cal, or  customary  sense  ; 

(4)  prima  facie  innocent,  but  capable  of  a  defamatory  mean- 

ing ; 

(5)  Obviously  innocent  ;  words  which  cannot  be  construed  so 
as  to  convey  any  imputation  on  the  plaintiff. 

To  these  different  classes  of  words  special  rules  of  pleading,  evi- 
dence, and  construction  apply. 

[*104]  1.   Words  obviously  defamatory. 

Here  no  innuendo  is  necessary.  No  parol  evidence  is  admissible 
at  the  trial  to  explain  the  meaning  of  the  words.  The  defendant 
cannot  be  heard  to  say  that  he  did  not  intend  to  injure  the  plaintiff's 
reputation,  if  he  has  in  fact  done  so.  The  question  is  still  of  course 
for  the  jury  ;  but  the  judge  will  practically  direct  them  that  the 
words  are  actionable  and  that  they  should  find  for  the  plaintiff  on 
that  issue.  Should  the  jury  perversely  refuse  to  follow  the  judge's 
direction,  a  new  trial  will  be  granted.  [Levi  v.  Milne,  4  Bing.  195  ; 
12  Moore,  418.) 

But  the  defendant  may  plead  circumstances  which  made  it  clear 
at  the  time  he  spoke  or  wrote  that  the  words  were  not  used  in  their 
ordinary  signification.  He  may  thus  take  the  words  out  of  this 
class  into  class  2,  words  primd  facie  defamatory.  It  will  then  be  a 
question  for  the  jury  how  the  bystanders  understood  the  words. 
But  such  question  only  arises  where  the  wTords  are  susceptible  of  the 
innocent  meaning  which  the  defendant  seeks  to  place  on  them,  and 
where  also  the  circumstances  which  are  alleged  to  qualify  the  inju- 
rious words  were  known  to  the  bystanders  at  the  time. 

Illustrations. 

It  is  libellous  without  any  innuendo,  to  write  and  publish  that  a  newspaper 
has  a  separate  page  devoted  to  the  advertisements  of  usurers  and  quaek  doctors, 
and  that  the  editor  takes  respectable  advertisements  at  a  cheaper  rate  if  the 
advertisers  will  consent  to  their  appearing  in  that  page.  The  Court,  however, 
expressed  surprise  at  the  absence  of  some  such  innuendo  as  "  meaning  thereby 
that  the  plaintiff's  paper  was  an  ill-conducted  and  low-class  journal." 
Russell  and  another  v.  Webster,  23  W.  R.  59. 
Where  a  libel  called  the  plaintiff  a  "  truckmaster,"  and  the  defendant  justi- 
fied ;  but  no  evidence  was  given  at  the  trial  as  to  the  meaning  of  the  word  ;  the 
Court  held  after  some  hesitation  that,  though  the  word  was  not  to  be  found  in 
any  English  dictionary,  its  meaning  was  sufficiently  clear  to  sustain  the  action, 
there  being  a  statute  called  "  The  Truck  Act." 

Homer  v.  Taunton,  5  H.  &  N.  661;  29  L.  J.  Ex.  318  ;8W,R.  499;. 
2  L.  T.512. 

(152) 


WORDS    OBVIOUSLY    DEFAMATORY.  81 

To  write  and  publish  that  a  certain  woman  is  a  prostitute,  and  that  "she  is, 
I  understand,  under  a  patronage  or  protection  of"  the  plaintiff,  was  held 
[*  105]  actionable  in  the  Court  of  Appeals  in  New  York,  although  there  was 
no  innuendo  averring  that  she  was  under  the  plaintiff's  protection  lor  immoral 
purposes. 

More  v.  Bennett  (1872),  48  X.  Y.  R.  (3  Sickels),  472  ; 
reversing  the  judgment  of  the  Supreme  Court  below,  reported  '■)'■)  How.  P.  R. 
180  :  48  Barbour,  N.  Y.  2:29.     , 

ii  is  libellous  to  write  and  publish  these  words: — "  Threatening  letters.     The 
Middlesex  grand  jury  have  returned  a  true  bill  against  a  gentlemen  of  some 
property  named  French. "     And  no  innuendo  is  necessary  to  explain  the  mean- 
ing of  the  words  ;  for  they  can  only  import  that  the  grand  jury  had  found  a 
true  bill  against  French  for  the  misdemeanour  of  sending  threatening  letters. 
Harvey  v.   French,  1   Cr.  &  M.  11  ;  2  M.  &  Scott,  591  ;  2  Tyrw. 
585  ; 
Allegorical  terms  of  well-known  import  are  libellous  pt  r  se,  without  innuen- 
does to  explain  their  meaning  ;  e.g.,  imputing  to  a  person  the  qualities  of  the 
"  frozen  snake,"  or  calling  him  "  Judas." 

Eoare  v.  Silverlock}  (No.  1,  1848),  12  Q.  B.  624  ;  17  L.  J.  Q.  B.  306  : 
12  Jur.  695. 
Words  complained  of  : — "  Thou  art  a  thief  :  "  no  innuendo  at  all  is  necessary, 
as  larceny  is  clearly  imputed. 

Blumley  v.  Base,  1  Roll.  Abr.  73. 
Slowman  v.  Button,  10  Bing.  402. 
If  the  words  can  be  understood  as  imputing  a  crime, no  innuendo  is  necessary. 
And,  if  it  wTere,  an  innuendo,    "meaning  thereby  that  the  plaintiff  had  been 
guilty  of  a  criminal  offence,"  is  sufficient  without  specifying  what,  particular 
crime  is  meant. 

Webb  v.  Beavan,  11  Q.  B.  D.  609  ;  52  L.  J.  Q.  B.  544  ;  49  L.  T.  201; 

47  J.  P.  488. 
Kinnahan  v.  McCuUagh,  Ir.  R.  11  C.  L.  1. 
Saunders  v.  Edwards,  i  Sid.  95. 
Francis  v.  Boose,  3  M.  &  W.  191  ;  1  H.  &  H.  36. 
To  say,  "  He  robbed  John  White,"  is  prima  facie  clearly  actionable.      But 
the  defendant  may  show,  if  he  can,  that  that  is  not  the  sense  in  which  the  words 
were  fairly  understood  by  bystanders  wdio  listened  to  the  whole  conversation, 
though  previously  unacquainted  with  the  matter  to  which  the  wTords  sued  on 
relate. 

Tomlimon  v.  Brittlebank,  4  B.  &  Adol.  630 ;  1  Nev.  &  Man.  455. 
Hnnkinson  v  Bilby,  16  M.  &  W.  442  ;  2  C.  &  K.  440. 
Martin  v.  Loei,  2  F.  &  F.  654. 

"  Blackmailing  "  is  clear,  and  requires  no  innuendo  to  support  it. 
Edsall    v.  Brooks,  2  Robt.  29  ;  3  Robt.  284  (New  York). 
So  is  "  pettifogging  shyster  "  when  applied  to  a  lawyer.     "  Courts  have  no 
right  to  be  ignorant  of  the  meaning  of  current  phrases  which  everybody  else 
understands." 

Bail?]/    v.  Kalamazoo  Publishing  Co.  (1879),  4  Chaney  (40  Michigan) 
251. 


£* 106^  2.   Words  prima  facie  defamatory. 

Here,  too,  no  innuendo  is  necessary,  and  no  parol  evidence  is 
admissable  at  the  trial  to  explain  the  meaning  of  the  words.  The 
judge  will  direct  the  jury  that  the  words  are  prima  facie  action- 
able. , 

But  the  defendant  may  plead  circumstances  which  made  it  clear 
at  the  time  that  the  wTords  were  not  used  by  him  in  their  ordinary 

6  Lib.  &  Slan.  (153) 


82  CONSTRUCTION    AND    CERTAINTY. 

signification.  He  may  plead  that  the  words  were  uttered  merely 
in  a  joke,  and  were  so  understood  by  all  who  heard  them  ;  or  that 
the  words  were  part  of  a  longer  conversation,  the  rest  of  which 
limits  and  explains  the  words  sued  on  ;  or  any  other  facts  which 
tend  to  show  that  they  were  uttered  with  an  innocent  meaning,  and 
were  so  understood  by  the  bystanders.  And  if  such  a  defence  be 
pleaded,  parol  evidence  may  be  given  of  the  facts  alleged.  And 
then  it  becomes  a  question  for  the  jury  whether  the  facts  as  pleaded 
are  substantially  proved,  and  whether  they  do  put  on  the  words  a 
colour  different  from  what  they  would  prima  facie  bear.  It  is  gen- 
erally difficult,  however,  to  induce  the  jury  to  adopt  the  defendant's 
harmless  view  of  his  own  language.  But  see  Grant  v.  Yates,  2 
Times  L.  R.  368. 

But  the  defendant  may  not  plead  or  give  in  evidence  any  facts 
which  were  not  known  to  the  bystanders  at  the  time  the  words  were 
uttered.  The  defendant's  secret  intent  in  uttering  the  words  is 
immaterial.  (Hankinson  v.  Bilby,  16  M.  &  W.  445  ;  2  C.  &  K. 
440.) 

The  defendant  is  allowed  thus  to  give  evidence  of  all  "the  sur- 
rounding circumstances,"  in  order  to  place  the  jury  so  far  as  possi- 
ble in  the  position  of  bystanders,  so  that  they  may  judge  how  the 
words  would  be  understood  on  the  particular  occasion.  But  though 
evidence  of  such  extrinsic  facts  is  admitted,  parol  evidence  merely 
to  explain  away  the  words  used,  to  show  that  they  did  not  for  once 
bear  their  ordinary  signification,  is  inadmissable.  A  witness  cannot 
be  called  to  say,  "I should  not  have  understood  defendant  to  make 
any  [*  107]  imputation  whatever  on  the  plaintiff."  The  jury  know 
what  ordinary  English  means,  and  need  no  witness  to  inform 
them. 

The  leading  case  on  this  point  is  one  cited  in  the  Lord  CromwelVs 
Case  (1578),  4  Rep.  13,  14.  (At  least,  it 'appears  to  be  a  decided 
case,  not  a  mere  illustration.)  "If  a  man  brings  an  action  on  the 
case  for  calling  the  plaintiff  murderer,  the  defendant  will  say,  that 
he  was  talking  with  the  plaintiff  concerning  unlawful  hunting, 
and  the  plaintiff  confessed  that  he  killed  several  hares  with  certain 
engines  ;  to  which  the  defendant  answered  and  said,  '  Thou  art  a 
murderer' (innuendo  the  killing  of  the  said  hares).  .  .  .  Resolved 
by  the  whole  Court,  that  the  justification  was  good.  For  in  case  of 
slander  by  words,  the  sense  of  the  words  ought  to  be  taken,  and  the 
sense  of  them  appears  by  the  cause  and  occasion  of  speaking  of  them 
for  sensus  verborum  ex  causa  dicendi  accipiendus  est  et  sermon es 
semper  accipiendi  sunt,  secundum  svbjectam.  .  .  .  And  it 
was  said,  God  forbid  that  a  man's  words  should  be  by  such  strict 
and  grammatical  construction  taken  by  parcels  against  the  manifest 
intent  of  the  party  upon  consideration  of  all  the  words,  which  import 
the  true  cause  and  occasion  which  manifest  the  true  sense  of  them  ; 
quia  qu<p  ad  vnumfinem  loquuta  runt,  nun  debent  ad  alium  detor- 
queri :  and,  therefore,  in  the  said  case  of  murder,  the  Court  held  the 
justification  good  ;  and  that  the  defendant  should  never  be  put  to 
the  general  issue,  when  he  confesses  the  words,  and  justifies  them,  or 

(154) 


WORDS    PRIMA    FACIE    DEFAMATORY.  83 

confesses  the  words,  and  by  special  matter  shows  that  they  are  not 
actionable."  (And  see  Shipley  v.  Tod/tunterl  C-.  &  P.  680.) 

Illustrations. 

"Words  complained  of:—"  Thou  hast  killed  my  wife."  Defendant's  wife  was 
still  alive,  and  the  bystanders  knew  it.  11  hi,  that  plaintiff  was  not  put  "  in 
any  jeopardy,  and  so  the  words  vain,  and  no  scandal  or  damage  to  the 
plaintiff." 

Snag  v.    Gee,  4  Rep.  16,  as  explained  by  Parke,  B.,  in  Heming  v. 
Power,  10  M.  &  W.  569. 
Words  complained  of  : — "  You  stole  my  apples."     The  defendant  cannot  be 
allowed  to  state  that  he  only  meant  to  say,  you  have  tortiously  removed  my 
apples  under  an  unfounded  claim  of  right,"     The  bystanders  could  not  possibly 
have  understood  from  the  word  used  that  a  civil  trespass  only  was  imputed. 
Devrill  v.  Eulbert  (Jan.  25th,  1878).  unreported. 
But  where  the  words  complained  of  are,  "  Thou  art  a  thief  :  for  thou  tookest 
mv  beasts  by  reason  of  an  execution,  and  I   will  hang   thee,"  no  action   lies 
[*108]  for  it  is  clear  that  the  whole  sentence  taken  together  imports  only  a 
charge  of  trespass. 

WiWs  Case,  1  Roll.  Abr.  51. 
Smith  v.    Ward,  Cro.  Jac.  674. 
Sibl  y  v.  Tomlins,  4  Tyrw.  90. 
"Where  words  are  used  which  clearly  import  a  criminal  charge  (as  "  You 
thief."  or  "  You  traitor  ").  it  is  still  open  to  the  defendant  to  show  if  he  can 
that  he  used  them  merely  as  vague  terms  of  general  abuse;  and  that  the  bystand- 
ers must  have  understood  him  as  meaning  nothing  more  than  "  You  rascal," 
or  "  You  scoundrel."     When  such  words  occur  in  a  string  of  non-actionable 
epithets,  or  in  a  torrent  of  general  vulgar  abuse,  the  jury  may  reasonably  infer 
that  no  felony  was  seriously  imputed.     If ,  however,  the  jury  put  the  harsher 
constructions' on  defendant's  language,  no  new  trial  will  be  granted  ;  for  it  is  a 
question  entirely  for  them. 

Minors  v.  Leeford,  Cro.  Jac.  114. 
Penfold  v.  Westcote,  2  Bos.  A  P.  K  R.  335. 
Where  the  defendant  said  to  the  plaintiff  in  the  presence  of  others,  "You 
are  a  thief,  a  rogue,  and  a  swindler,"  it  was  held  that  the  defendant  could  not 
call  a  witness  to  explain  the  particular  transaction  which  he  had  in  his  mind  at 
the  time,  since  he  did  not  in  any  way  expressly  refer  to  it  in  the  prssence  of 
his  hearers. 

Martin  v.  Loei,  2  F.  &  F.  654. 
Read  v.  Ambridge,  6  C.  &  P.  308. 
JIankinsotiv.  Bitty,  16  M.  &  W.  442;  2  C.  &  K.  440. 
Defendant  stated  publicly  that  plaintiff  had  been  detected  taking  dead  bodies 
out  of  the  churehvard  and  'fined,  <5cc.     He  meant  it  as  a  joke  ;  but  there  was  no 
evidence  that  the*  bystanders  so  understood  it.     The  Court  set  aside  a  verdict 
for  the  defendant,     Per  Joy,  C.  B.,  "  the  principle  is  clear  that  a  person  shall 
not  be  allowed  to  murder  another's  reputation  in  jest.     But  if  the  words  be  so 
spoken  that  it  is  obvious  to  every  bystander  that  only  a  jest  is  meant,  no  injury 
is  done,  and  consequently  no  action  would  lie," 

Donog7iesv.  flayes{l8'Sl),  Hayes  (Irish  Exch.),  265. 
But  where  the  defendant  said,  "  Thompson  is  a  damned  thief  ;  and  so  was 
his  lather  before  him,  and  I  can  prove  it  ;  "  but  added,  "  Thompson  received  the 
earnings  of  the  ship,  and  ought  to  pay  the  wages,"  Lord  Ellenborough  held 
that  the  latter  words  qualified  the  former  and  showed  no  felony  was  imputed  ; 
the  person  to  whom  the  words  were  spoken  being  the  master  of  the  ship  and 
acquainted  with  all  the  circumstances  referred  to. 
Thompson  v.  Bernard,  1.  Camp.  48. 
Bittridge's  Case,  4.  Rep.  19. 
Gristle  v.  Coirell,  Peake,  4. 

Day  v.  Robinson,  1  A.  A'  E.  554  ;  4  N.  &  M.  884. 
[*i09i  3.  Neutral  Words. 

Where  the  defendant  has  used  only  ordinary  English  words,  the 

(155) 


84  CONSTRUCTION    AND    CERTAINTY.' 

judge  can  decide  at  once  whether  they  arc  primd  facie  actionable 
or  not.  Bui  where  .the  words  arc  in  a  foreign  language,  or  are 
technical  or  provincial  terms,  an  innuendo  is  absolutely  necessary 
to  disclose  an  actionable  meaning.  So,  ton,  an  innuendo  is  essen- 
tial where  ordinary  English  words  are  not  in  the  particular  instance 
used  in  their  ordinary  English   signification,  but  in  some  peculiar 

Where  the.  words  are  spoken  in  a  foreign  language  the  original 
words  should  be  set  out  in  the  statement  of  claim,  and  then  an 
exact  translation  should  be  added.  (Zenobio  v.  Axtell,  6  T.  R. 
L62  ;  3  M.  &  S.  116.)  In  the  case  of  slander  an  averment  was 
formerly  required  to  the  effect  that  those  who  were  present  under- 
stood that  language.  {Fleetwood  v.  Curl,  Cro.  Jac.  557  ;  H6b.  268.) 
And  though  such  an  averment  is  no  longer  necessary,  the  fact  must 
still  he  proved  at  the  trial.  For  if  words  bespoken  in  a  tongue 
altogether  unknown  to  the  hearers,  no  action  lies  (Jones  v.  Davers 
(vel  Dmckes)  (1597),  Cro.  Eliz.  496  ;  1  Roll.  Abr.  74)  ;  for  no  in- 
jury is  done  to  the  plaintiff's  reputation.  But  if  a  single  bystander 
understood  them,  that  is  enough.  Where,  however,  the  words  are 
spoken  in  the  vernacular  of  the  place  of  publication  (as  Welsh 
words  spoken  in  Wales)  it  will  be  presumed  that  the  bystanders 
understood  them.  At  the  trial  the  correctness  of  the  translation 
must  be  proved  by  a  sworn  interpreter. 

So  at  the  trial  whenever  the  words  used  are  not  ordinary  English, 
but  local,  technical,  provincial,  or  obsolete  expressions,  or  slang  or 
cant  terms,  evidence  is  admissible  to  explain  their  meaning,  pro- 
vided such  meaning  has  been  properly  alleged  in  the  statement  of 
claim.  But  when  the  words  are  well-known  and  perfectly  intel- 
ligible English  the  Court  will  give  them  their  ordinary  English 
meaning,  [*110]  unless  it  is  in  some  way  shown  that  that  meaning 
is  inapplicable.  This  may  appear  from  the  words  themselves  ;  for 
in  some  cases  to  give  them  their  ordinary  English  meaning  would 
make  nonsense  of  them.  But  if  in  their  ordinary  English  meaning 
the  words  would  be  intelligible,  facts  must  be  given  in  evidence  to 
show  that  they  may  have  been  used  in  another  special  meaning  on 
this  particular  occasion.  After  that  has  been  done  a  bystander 
may  be  asked,  "  What  did  you  understand  by  the  expression  used  ?  " 
But  without  such  a  foundation  being  first  laid  the  question  is  not 
allowable.  (Dairies  v.  Hartley,  3  Exch.  200;  18  L.  J.  Ex.  81  ; 
12  Jur.  1093.) 

Illustrations. 

"Words  complained  of: — "You  are  a  bunter."    No  innuendo;  Willes,  J., 
nonsuited  the  plaintiff,  on  the  ground  that  the  word  had  no  meaning  at  all,  and 
could  not  therefore  be  defamatory  in  ordinary  acceptation  ;  and  he   refused  to 
allow  the  plaintiff  to  be  asked,  what  the  word  "  bunter"  meant.     Aliter,  had 
there  been  an  innuendo  averring  a  defamatory  sense  to  the  word  "  bunter." 
Bawlingset  ux.  v.  Norbury,  1  F.  &  F.  341. 
Words  spoken  to  an  attorney : — "  Thou  art  a  daffadowndilly."     Innuendo, 
meaning  thereby  that  he  is  an  "ambidexter,"  i.e.,  one  who  takes  a  fee  from 
both  sides,  and  betrays  the  secrets  of  his  client.     Held,  that  an  action  lay. 
Anon.,  (Exch.)  1  Roll.  Abr.  55. 
Annison  v.  Blofield,  Carter,  214. 
(156) 


UNMEANING    WORDS.  85 

It  is  actionable  to  say,  "  Thou  art  a  clipper,  and  thy  neck  shall  pay  for  it." 
"For  though  'clipper 'is  general,  and  may  be  intended  a  clipper  of  wool, 
cloth,  &c,  yet  the  following  words  show  it  to  be  intended  of  clipping  for  which 
he  shall  be  hanged." 

Nabcn   v.-  Mil  rork,  Skin.  183. 
It  is  actionable  to  say  of  a  stockjobber  that,  "  He  is  a  lame  duck,"  innuendo, 
"  meaning  thereby  that  the  plaintiff  had  not  fulfilled  his  contracts  in  respect  of 
the  said  stocks  and  funds,"  (stockjobbing  being  now  legalized  by  the  23  &  34 
Vict.  c.  28). 

Mm-ris  and  Langdale,  2  Bos.  &  Pul.  284. 
It  is. libel  on  L.  to  write  and  publish  of  him  that  he  is  one  of  "  a  gang  who 
live  by  cardsharping,"  there  being  an  innuendo,  "  meaning  thereby  that  L.  is  a 
swindler  and  a  cheat,  and  lives  by  cheating  or  playing  at  cards,  and  that  he 
and  B.  and  G.  had,  previous  to  the  libel,  conspired  together  in  cheating  divers 
persons  in  playing  at  cards." 

llll.  pros.  Lambri  v.  Labouchere,  14  Cox,  C.C.  419. 
The  word  "  wrelcher  "  requires  an  innuendo  to  explain  its  meaning. 

Blackmail  v.  Bryant,  27  L.  T.  491. 
Pollock,  C   B.,  thought  the  word   "  truckmaster  "  required  no  innuendo  to 
[*111J  explain  its  meaning,  as  it  "is  composed  of    two  English  words  intelli- 
gible to  everybody." 

Homer  v.  Taunton,  5H.&K  661  ;  29  L.  J.  Ex.  318  ;  8  W.  R.  499; 
2  L.   T.  512. 
But  so  are  "  blackleg  "  and  "  blacksheep,"  and  these  words  do   require  an 
innuendo. 

M'Oregor  v.  Gregory,  11  M.  &  W.  287  ;  12  L.  J.  Ex.  204  ;  2  Dowl. 

N.  S.  769. 
O'Brien  v.  Clement,  16  M.  &  W.  166  ;  16  L.  J.  Ex.  77. 
Barnett  v.  Allen,  1  F.  &  F.  125;  27  L.  J.  Ex.  412;  4  Jur.  N.  S. 
488  ;  3  H.  &  N.  376. 
The  defendant  charged   the   plaintiff,  a  pawnbroker  and  silversmith,  with 
"duffing":    an   innuendo,   "meaning   thereby  the  dishonourable  practice  of 
furbishing  up  damaged  goods  and  pledging  them  with  other  pawnbrokers  as 
new,"  was  held  good. 

Hickinbotham  v.  Leach,  10  N.  &  W.  361  ;  2  Dowl.  N.  S.  270. 
The  words,  "  He  is  mainsworn,"  were  spoken  in  one  of  the  northern  counties 
where  "  mainsworn  "  is  equivalent  to  "  perjured  "  (forsworn  with  his  hand  on 
the  book.)     Held  acl  ionable. 

Slater  v.  Franks,  Hob.  126. 

And  see  Coles  v.  Hariland,  Cro.  Eliz.  250  ;  Hob.  12." 
A.  and  B.  were  partners,  and  were  conversing  with  the  defendant.  A.  said 
they  held  some  bills  on  the  plaintiff's  firm  ;  the  defendant  said  : — ■  "  You  must 
look  out  sharp  that  they  are  met  by  them."  At  the  trial,  B.  was  called  as  a 
witness,  and  stated  these  facts.  The  counsel  for  the  plaintiff  then  proposed  to 
ask  B.  : — "  What  did  you  understand  by  that  V  "  But  the  question  was  objected 
to,  and  disallowed  by  tiie  judge  (Pollock,  C.  B.)  in  that  form,  and  the  counsel 
would  put  it  in  no  other  shape.  The  jury  found  a  verdict  for  the  defendant : 
and  the  Court  of  Exchequer  refused  to  grant  a  new  trial. 

Dairies  and  another  v.  Hartley,  3  Exch.  200;  18  L.  J.  Ex.  81;  12 
Jur.  1093. 
Libel  complained  of  :  "  There  are  very  few  persons  in  society  who  do  not  look 
upon  the  whole  affair  to  be  got  up  for  a  specific  occasion,  and  consider  that  it 
has  been  neither  more  or  less  than  a  '  plant.'  We  have  heard  it  roundly  asserted 
that  a  clerk  of  Mr.  Hamer,  the  notorious  lawyer,  was  placed  under  a  sofa  at  his 
lordship's  residence  when  the  Earl  of  Cardigan  called  there."  The  indictment 
stated.  "  that  the  said  Tomas  Holt  used  the  words  '  a  plant '  for  the  purpose  of 
expressing  and  meaning,  and  the  said  words  used  by  him  were  by  divers,  to  wit, 
all  the  persons  to  whom  the  said  libel  was  published,  understood  as  expressing 
and  meaning,  an  artful  and  wicked  plan  and  contrivance  made  and  entered  into 
by  the  said  William  Paget,  Esq.,  and  other  persons  by  false  and  unfounded 
testimony  and  a  wrongful  and  wicked  perversion  of  facts  to  make  out,  support 
and  establish  the  said  charge,  and  by  concert  and  arrangement  falsely  to  fix 

(157) 


86  CONSTRUCTION    AND    CERTAINTY. 

upon  the  said  earl  the  commission  of  the  said  trespass  and  assault  for  the  pur- 
pose of  obtaining  divers  of  the  moneys  of  the  said  earl  to  the  use  of  the  said 
William  Paget,  Esq.,"  and  concluded  with  the  following  innuendo  . — "Thereby 
then  and  there  meaning  that  the  said  William  Paget,  Esq.,  had  with  other 
persons  artfully  and  wickedly  planned  and  contrived  to  make  a  false  and  un- 
founded charge  against  the  said  earl  of  his  having  been  guilty  of  the  said  tres- 
passand  assault  upon  the  said  wife  of  the  said  William  Paget,  Esq,,  and  to  make 
[*112]  out,  support  and  establish  such  charge  by  false  and  unfounded  testimony 
and  a  wicked  and  wrongful  perversion  of  facts  for  the  purpose  of  extorting  and 
obtaining  from  the  said  earl  divers  of  his  moneys  to  the  use  of  the  said  William 
Paget,  Esq."  A  reporter  for  one  of  the  London  newspapers  was  called  to  define 
"a  plant,"  and  his  evidence  justified  the  innuendo.  The  recorder  left  it  to  the 
jury  whether  they  were  satisfied  that  the  word  "  plant"  bore  the  meaning  attrib- 
uted to  it  by  the  prosecution  ;  i6*so,  the  passage  was  libellous.  Verdict,  guilty. 
B.  v.  xhomas  Holt,  8  J.  P.  212. 
The  defendant,  the  editor  of  a  newspaper,  owed  plaintiff  money  under  an 
award  ;  and  wrote  and  published  in  his  newspaper  these  words  : — "  The  money 
will  be  forthcoming  on  the  last  day  allowed  by  the  award,  but  we  are  not  dis- 
posed to  allow  him  to  put  it  into  Wall-street,  for  shaving  purposes  before  that 
period."  "Shaving  "in  New  York  means,  (i)  discounting  bills  or  notes;  (ii) 
fleecing  men  of  their  goods  or  money  by  overreaching,  extortion,  and  oppres- 
sion. The  declaration  contained  no  innuendo  alleging  that  the  words  wrere 
used  in  the  second  defamatory  sense.  Held  no  libel,  on  demurrer. 
Stone  v.  Cooper  (1845),  .2  Denio  (N.  Y.),  293. 

4.   Words    prima  facie    innocent,  but    capable  of  a  Defamatory 

Meaning. 

Wherever  the  defendant's  words  are  capable  both  of  a  harmless 
and  an  injurious  meaning,  it  will  be  a  question  for  the  jury  to 
decide  which  meaning  the  hearers  or  readers  would  on  the  occasion 
in  question  have  reasonably  given  to  the  words.  Here  an  innuendo 
is  essential  to  show  the  latent  injurious  meaning.  Without  an 
innuendo,  there  would  be  no  cause  of  action  shown  on  the  record. 
And  such  innuendo  should  be  carefully  drafted  ;  for  on  it  the 
plaintiff  must  take  his  stand  at  the  trial.  He  cannot  during  the  course 
of  the  case  adopt  a  fresh  construction.  He  may,  it  is  true,  fall  1  ack  on 
the  natural  and  obvious  meaning  of  the  words  :  but  that  we  assume 
here  not  to  be  actionable.  And  such  innuendo  must  be  specific  ; 
it  must  distinctly  aver  a  definite  actionable  meaning.  A  general 
averment,  such  as,  "  using  the  words  in  a  defamatory  sense,"  or  "  for 
the  purpose  of  creating  an  impression  unfavourable  to  the  plaintiff," 
would   be  insufficient.     (Coxx.  Cooper,  12  W.  R.  75  ;  9  L.  T.  389.) 

The  words,  too,  must  be  fairly  susceptible  of  the  defamatory 
meaning  put  upon  them  by  the  innuendo,  or  the  [*  11 3]  judge  at 
the  trial  will  stop  the  case.  "The  judge  must  decide  if  the  wTords 
are  reasonably  capable  of  two  meanings  ;  if  he  so  decide,  the  jury 
must  determine  which  of  the  two  meanings  was  intended."  (Per 
Sir  Montague  Smith,  6  App.  Cas.  at  p.  158  ;  Jenner  and  another  v. 
A'Beckett,!,.  R.  7  Q.  B.  11  ;  41  L.  J.  Q.  B.  14  ;  20  W.  R,  181  ;  25 
L.  T.  464  ;  Grant  v.  Yates,  2  Times  L.  R.  368.)  And  their  decision 
on  the  point  is  final  ami  conclusive. 

In  determining  this  question  the  jury  will  consider  the  whole  of 
the  circumstances  of  the  case,  the  occasion  of  publication,  the 
relationship   between  the  parties,  &c.     A  further  question  of  fact 

(158) 


WORDS    PRIMA    FACIE    INNOCENT.  87 

may  arise  :  Were  there  any  facts  known  both  to  speaker  and 
hearer  which  would  reasonably  lead  the  latter  to  understand  the 
words  in  a  secondary  and  a  defamatory  sense  ?  And  this  is  a  ques- 
tion for  the  jury,  if  there  be  any  evidence  to  go  to  them  of  such 
facts.  (Capital  and  Counties  Bank  v.  Henty  <!b  Sons  (C.  A.),  5 
C.  P.  D.  514  ;  49  L.  J.  C.  P.  830  ;  28  W.  R.  851  ;  (II.  L.)  7  App. 
Cas.  741  ;  52  L.  J.  Q.  B.  232  ;  31  AY.  R.  157  ;  47  L.  T.  662  ;  47 
J.  P.  214  ;  Ruel  v.  Tatnell,  29  W.  R.  172  ;  43  L.  T.  507.)  Also 
whenever  the  words  of  a  libel  are  ambiguous,  or  the  intention  of 
the  writer  equivocal,  subsequent  libels  are  admissible  in  evidence 
to  explain  the  meaning  of  the  first,  or  to  prove  the  innuendoes,  even 
although  such  subsequent  libels  be  written  after  action  brought. 

Hence  "  if  the  defendant  can  get  either  the  Court  or  the  jury  to 
be  in  his  favour,  he  succeeds.  The  prosecutor  or  plaintiff  cannot 
succeed  unless  he  gets  both  the  Court  and  the  jury  to  decide  for 
him."     (Per  Lord  Blackburn,  7  App.  Cas.  at  p.  776.) 

Illustrations. 

"  He  is  a  healer  of  felons  ;  "  innuendo,  a  concealer  of  felons.     Held  actionable. 

Pridhani  v.  Tucker,  Yelv.  153  ;  Hob.  126  ;  Cart.  214. 
"  He  has  set  his  own  premises  on  fire."     These  words  are  prima  facie  inno- 
cent ;    but  may  become  actionable,  if  it  be  averred  that  the  house  was  insured, 
and  that  the  words  were  intended  to  convey  to  the  hearers  that  the  plaintiff  had 
,[*114]  purposely  set  fire  to  his  own  premises  with  intent  to  defraud  the  insur- 
ance office.     There  being  no  such  averment,  the  Court  arrested  judgment. 
Sweetapple  v   Jesse,  5  B.  &  Ad.  27  ;  2  N.  &  M.  3fi. 
"  She  secreted  one  and  sixpence  under  the  till,  stating,  '  These  are  not  times 
to  be  robbed.'"     No  innuendo.     There  being  nothing  to  show  that  the  Is.  Qd. 
was  not  her  own  money,   the  Court  arrested  judgment  ;   for,   though  special 
damage  was  aliened,  it  was  not  the  necessary  and  natural   consequence  of  the 
words,  as  set  out  in  the  declaration. 

Kelly  v.  Partington,  5  B.  &  Ad.  645;  3  N.  &  M.  116,  ante,  p.  90. 
The  plaintiff,  Mary  Griffiths,  was  a  butcher  and  had  a  son,  Matthew.  Words 
spoken  by  defendant  :— "  Matthew  uses  two  balls  to  his  mother's  steelyard  ;  " 
innuendo,  "  meaning  that  plaintiff'  by  Matthew,  her  agent  and  servant,  used 
improper  and  fraudulent  weights  in  lier  said  trade,  and  defrauded  and  cheated 
in  her  said  trade."  After  verdict  for  the  plaintiff,  held  that  the  words,  as 
stated  and  explained,  were  actionable. 

Griffiths  v.  Lewis,  7  Q.  B.    61  ;   8  Q.  B.  841  ;    14  L.  J.  Q.  B.  197  ; 
15  L.  J.  Q.  B.  249  ;,9  Jur.  370  ;  10  Jur.  711. 
To  say  that  the  plaintiff  is  "Man  Friday"  to  another  is  not  actionable,  with- 
out an  innuendo  averring  that  the  term  imputed  undue  subserviency  and  self- 
humiliation. 

Forbes  v.  King,  2  L  J.  Ex.  109  ;  1  Dowl.  672. 
See  Woodgate  v.  Ridout,  4F  &F.  202. 
Words  complained  of  : — "  The  old  materials  have  been  relaid  by  you  in  the 
asphalte  work  executed  in  the  front  of  the  Ordnance  Office,  and  I  have  seen 
the  work  done."  Innuendo,  "that  the  plaintiff  had  been  guilty  of  dishonesty 
in  his  trade  by  laying  down  again  the  old  asphalte  which  had  before  been  used 
at  the  entrance  of  the  Ordinance  Office,  instead  of  new  asphalte  according  to  his 
contract ;  "  and  this  innuendo  was  held  not  too  large.  Verdict  for  the  plaintiff. 
Damages  40s. 

Baboneau  v.  Farrell,  15  C.  B.  360  ;  24  L.  J.  C.  P.  9  ;  3  C.  L.  R.  42  ; 
1  Jur.  K  S.  114. 
_  An  action  was  brought  for  the  following  libel  on  the  plaintiff  in  the  way  of 
his  trade  : — "  Society  of  Guardians  for  the  Protection  of  Trade  against  Swind- 
lers and  Sharpers.     I  am  directed  to  inform  you  that  the  persons  using  the  firm 

(159) 


88  CONSTRUCTION    AND    CERTAINTY. 

of  Goldstein  and  Co.  arc  reported  to  this  Society  as  improper  to  be  proposed  to 
be  balloted  for  as  members  thereof."  After  verdid  for  the  plaintiff,  the  Court 
arrested  judgment,  because  there  was  noaverment  that  it,  was  the  custom  of  the 
Society  to  designate  swindlers  and  sharpers  by  the  term  "improper  persons  to 
be  members  of  this  Society."  [There  was  an  innuendo,  "  meaning  thereby  thai 
the  plaintiff  was  a  swindler  and  a  sharper,  &c,"  which  would  lie  sufficient  now  ; 
but  before  the  ('.  L.  P.  Act.  1852,  s.  61,  an  innuendo  required  a  prefatory  aver- 
ment to  support  it.]  The  words  in  their  natural  aud  obvious  meaning  were 
held  to  be  no  libel. 

Goldstein  v.  Foss,  G  B.  &  C.  154  ;    1  M.  &  P.  402  ;  2  }  .  &  J.  14G  ;  9 
1).  &  R.  197  ;  (in  Ex.  Ch.)  4  Bing.  489  ;  2  C.  &  I'.  252. 

Cup,!  and  others  v.  Jones,  4  C.  B.  259  ;  11  Jur.  396. 
To  say  of  a  merchant,  "  He  hath  eaten  a  spider,"  Mr.  .lust ice  Wild  said  was 
[*115]   "actionable   with  a  proper  averment   what  the  meaning  is."     But  the 
report  does  not  vouchsafe  any  explanation  of  the  meaning. 

Frankly n  v.  Butler,  Pasch.  11  Car.  I.,  cited  in  Annison  v.  Blofield, 
Carter,  214. 
The  words  "  'Ware  hawk  there  ;  mind  wdiat  you  are  about,"  will,  with  proper 
averments,  amount  to  a  charge  of  insolvency  against  the  plaintiff,  a  trader  ;  and 
so  are  actionable.  .,„.,, 

Orpwood  v.  Burkes  (ml  Parkes),  4  Bing.  261 ;  12  Moore,  492. 
The  plaintiff  was  a  grocer,  and  had  started  what  is  known  as  a  (  hristnias  club, 
to  which  he  endeavoured  to  obtain  1,000  subscribers.  The  defendant,  a  fellow 
tradesman,  said  "His  shop  is  in  the  market."  Innuendo:  "meaning  thereby 
that  the  plaintiff  was  going  away,  and  was  guilty  of  fraudulent  conduct  in  his 
business,  inasmuch  as  he  had  received  subscriptions  from  members  of  the  club, 
well  knowing  that  they  would  be  unable  to  obtain  any  benefit  therefrom." 
Held,  that,  the  words  not  being  in  themselves  defamatory,  and  there  being  no 
evidence  to  support  the  innuendo,  the  defendant  was  entitled  to  judgment. 

Buel  v.  Tatnell,  43  L.  T.  507 ;  29  W.  1?.  172. 
The  defendant  said  to  an  upholsterer  :— "  You  are  a  soldier  ;  I  saw  you  in 
your  red  coat  doing  duty  ;  your  word  is  not  to  be  taken."  These  words  are 
prima  facie  not  actionable  ;  but  it  was  explained  that  there  was  then  a  common 
practice  for  tradesmen  to  sham  enlisting  so  as  to  avoid  being  arrested  for  debt. 
The  words  were  therefore  held  actionable  as  damaging  the  credit  of  a  trader. 

Arm    v.  Johnson,  10  Mod.   111. 

Gostling  v.  Brooks,  2  F.  &  F.  7G. 
The  defendant  said  of  the  plaintiff  :— "  Foulger  trapped  three  foxes  in  Ridler  s 
•wood"  These  words  are  prima  facie  not  actionable;  but  the  declaration 
averred  that  the  plaintiff  was  a  gamekeeper,  that  it  is  the  duty  of  a  gamekeeper 
not  to  kill  foxes,  that  the  plaintiff  was  employed  expressly  on  the  terms  that  he 
would  not  kill  foxes,  and  that  no  one  who  killed  foxes  would  be  employed  as  a 
gamekeeper.  Held,  on  demurrer,  a  good  declaration ;  for  the  words,  so 
explained,  clearly  imputed  to  the  plaintiff  misconduct  in  his  office  or  occupa- 
tion   and  were  therefore  actionable  without  proof  of  special  damage. 

Foulgt  r  v.  Newcomb,  L.  R.  2  Ex.  327  ;  36  L.  J.  Ex.  169  ;  15  W.  R. 
1181;  16  L.  T.  595. 
But  an  indictment  for  publishing  a  handbill,  "  B.  Oakley  of  Clullington, 
Game  and  Rabbit  Destroyer,  and  his  wife,  the  seller  of  the  same  in  country  and 
town  "  was  quashed,  there  being  no  innuendo  explaining  the  words  or  showing 
that  they  implied  any  offence  or  referred  to  the  trade  or  calling  of  the  prose- 
cutor. 

Beg.  v.  James  Yulrs,  12  Cox,  C  C.  233. 
A  landlord  sent  to  his  tenants  a  notice  :— "Messrs.  Henty&  Sons  hereby  give 
notice  that  they  will  not  receive  in  payment  any  cheques  drawn  on  any  ol  the 
branches  of  the  Capital  and  Counties  Bank."  Innuendo,  "meaning  thereby 
that  the  plaintiffs  were  not  to  be  relied  upon  to  meet  the  cheques  drawn  upon 
them  and  that  their  position  was  such  that  they  were  not  to  be  trusted  to  cash 
the  cheques  of  their  customers."  Held,  that  the  words  in  their  natural  and 
primary  sense  were  not  libellous  ;  that  the  onus  lay  on  the  bank  to  show  that 
they  eonveved  some  secondary  libellous  meaning  ;  and  that  as  no  evidence  was 
offered  of   facts  known  to  the  tenants  which  could  reasonably  induce  them  to 

(160) 


WORDS    CLEAKLY    INNOCENT.  89 

understand  the  words  in  the  defamatory  sense  ascribejJ  to  them  by  the  innuendo, 
[  *  116]  there  was  no  case  to  go  to  the  jury,  and  the  defendants  were  entitled  to 
judgment. 

Capital  a  in!  Counties  Bunk  v.  Henty  and  Suns  (C.  A.),  5  C.  P  D  514  • 
49  L.  J.  C.  P.  830  ;    28  W.  R.  851  ;  43  L.  T.  651  ;    (H.  L.)  7  App' 
Cas.  741 ;    52  L.  J.  Q.  B.  232  ;    31  W.  R.  157  ;    47  L.  T.  6G2  ;   47 
J.  P.  214. 
Defendant  posted  up  several  placards  which  ran  thus  : — "  W.  Gee,  Solicitor, 
Bishop's  Stortford.     To  he  sold  by  auction,  if  not  previously  disposed  of  by 
private  contract,  a  debt  of  the  above,  amounting  to  £3,197,  due  upon  partner- 
ship and  mortgage  transactions."     There  was  no  innuendo.     Bramwell,  B.,  told 
the  jury  that  in  his  opinion  this  was  no  libel,  "because  it  was  not  libellous  to 
publish  of  another  that  he  owed  money  ;"  and  the  jury  returned  a  verdict  of 
Not  guilty. 

R.  v.  Coghlan,  4  F.  &  F.  316. 

The  plaintiff  may  also  aver  in  his  statement  of  claim  that  the 
words  were  spoken  ironically  ;  and  it  will  then  be  a  question  for 
the  jury  quo  animo  the  words  were  used. 

Illustrations. 

Ironical  praise  may  be  a  libel ;  e.g.,  calling  an  attorney  "  an  honest  lawyer." 

Boydell  v.  Jones,  4  M.  &  W.  446  ;  1  H.  &  H.  .408  ;  7  Dowl.  210. 
It  is  actionable  to  say  ironically,  "  You  will  not  play  the  Jew  or  the  hypocrite." 

R.  v.  Garret  (Sir  Baptist  Hicks'  Case),  Hob.  215  ;  Popham,  139. 
Ironical  advice  to  the  Lord  Keeper  by  a  country  parson,  "to  be  as  wise  as 
Lord  Somerset,  to  manage  as  well  as  Lord  Haversham,  to  love  the  church  as 
well  as  the  Bishop  of  Salisbury,"  &c,  is  actionable. 
R.  v.  Dr.  Brown,  11  Mod.  86  ;  Holt,  425. 


5.    Words  incapable  of  a  Defamatory  Meaning. 

But  where  the  words  can  bear  but  one  meaning,  and  that  is 
obviously  not  defamatory,  then  no  innuendo  or  other  allegation  on 
the  pleadings  can  make  the  words  defamatory  ;  no  action  lies  ;  and 
the  judge  at  the  trial  will  nonsuit  the  plaintiff  and  not  permit  the 
case  to  go  to  the  jury.  No  parol  evidence  is  admissible  to  explain 
the  meaning  of  ordinary  English  words,  in  the  absence  of  special 
circumstances  showing  that  in  the  case  before  the  Court  the  words 
do  not  bear  their  usual  signification.  u  It  is  not  right  to  say  that  a 
judge  is  to  affect  not  to  know  what  everybody  [*  117]  else  knows — 
the  ordinary  use  of  the  English  language."  (Per  Brett,  J.,  1  C.  P. 
D.  572.)  The  fact  that  actual  damage  has  in  fact  followed  from 
the  publication  is  immaterial  in  considering  what  is  the  true  con- 
struction of  the  libel.  (Per  Lord  Coleridge^  C.  J.,  2  C.  P.  D.  150.) 
Except,  perhaps,  as  showing  that  one  person  at  all  events  under- 
stood the  words  in  a  defamatory  sense.  "  It  shall  be  adjudged 
ex  effectu  dicendi.'"  (Per  Jones  and  Croke,  JJ.,  in  Southold  v. 
Daunston,  Cro.  Car.  269.) 

Illustrations. 

Words  complained  of  : — "  He  was  the  ringleader  of  the  nine  hours'  system." 
"He  has  ruined  the  town  by  bringing  about  the  nine  hours'  system,"  &c. 
The   declaration  contained  no    innuendo,  and  no  sufficient  averment  that  the 

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90  CONSTRUCTION    AND    CERTAINTY. 

words  wore  spoken  of  the  plaintiff  in  the  way  of  his  trade,  and  on  demurrer, 
was  held  bad. 

Mill,  r  v.  David,  L.  R.  9  C.  P.  118  ;  43  L.  J.  C.  P.  84  ;  22  W.  R.  332 ; 
30  L.  T.  58. 
Words  complained  of  :— "  We  are  requested  to  state  that  the  honorary  secre- 
tary of  Hie  Tichborne  Defeuce  Fund  is  not  -.aid  never  was  a  captain  in  the 
Royal  Artillery  as  he  has  been  erroneously  described."  Innuendo,  that  the 
plaintiff  was  an  impostor,  and  had  falsely  and  fraudulently  represented  himself 
to  be  a  captain  in  the  Royal  Artillery.*  Bovill,  C.  J.,  held  that  the  words  were 
not  reasonably  capable  of  the  defamatory  meaning  ascribed  to  them  by  the 
innuendo,  and  nonsuited  the  plaintiff.  Held,  that  the  nonsuit  was  right. 
Hunt  v.  Goodlake,  43  L.  J.  C.  P.  54 ;  29  L.  T.  472. 
The  plaintiff  was  a  certificated  art  master, and  had  beeen  master  at  the  Walsall 
Science  and  Art  Institute.  His  engagement  there  ceased  in  June,  1874,  and  lie 
then  started,  and  became  master  of ,  another  school  which  was  called  "The 
Walsall  Government  School  of  Art,"  and  was  opened  in  August.  In  September 
the  following  advertisement  appeared  in  the  Walsall  Observer,  signed  by  the 
defendants  as  chairman,  treasurer,  and  secretary  of  the  institute  respectively  : — 
"  Walsall  Science  and  Art  Institute.  The  public  are  informed  that  Mr.  Mulli- 
gan's connection  with  the  Institute  has  ceased,  and  that  he  is  not  authorized  to 
receive  subscriptions  on  its  behalf."  The  declaration  set  out  this  advertisement 
with  an  innuendo, — "meaning  thereby  that  the  plaintiff  falsely  assumed  and 
pretended  to  be  authorized  to  receive  subscriptions  on  behalf  of  the  said  Insti- 
tute." At  the  trial  Quain,  J.,  directed  a  nonsuit  on  the  ground  that  the  adver- 
tisement was  not  capable  of  the  defamatory  meaning  attributed  by  the 
innuendo  : — Held,  that  the  nonsuit  was  right ;  that  the  advertisement  was  not 
capable  of  any  defamatory  meaning. 

.      Mulligan  v.  Cole  and  others,  L.  R.  10  Q.  B.  549  ;  44  L.  J.  Q.  B.  153  ; 
33  L   T   12 
Brent  v.  Spr'att,  Times  for  Feb.  3rd,  1882.  ante,  p.  78. 
Raven  v.  Stevens  and  Sons,  3  Times  L.  R.  67. 

[*118-1  Certainty, 

But  even  where  the  meaning  of  the  defendant's  words  is  cleLr  or 
has  been  ascertained,  the  question  remains  : — Has  he  said  enough  ? 
Was  the  .imputation  sufficiently  definite  to  injure  the  plaintiff's 
reputation  ?  Is  it  clear  that  it  is  the  plaintiff  to  whom  it  referred  ? 
Unless  these  questions  can  be  answered  in  the  affirmative,  no  action 
lies.     There  must  he  a  specific  imputation  cast  on  the  person  suing. 

"In  every  action  on  the  case  for  slanderous  words,  two  things 
are  requisite  : 

1.  That  the  person  who  is  scandalized  is  certain  ; 

2.  That  the  scandal  is  apparent  by  the  words  themselves'  .  .  .  As 
an  innuendo  cannot  make  the  person  certain  which  was  uncertain 
before,  so  an  innuendo  cannot  alter  the  matter  or  sense  of  the  words 
themselves. "     [James  v.  JZutlech,  4  Rep.  17  a.) 

This  is  clearly  only  a  part  of  the  construction  of  the  words  ;  hut 
it  is  convenient  to  collect  the  cases  under  a  separate  head,  which  may 
be  denoted  by  the  well-known  pleading  phrase,  Certainty.  Often 
the  only  question  of  construction  arising  in  a  case  may  be  one  of 
certainty. 

The  court  formerly  expected  to  he  assisted  in  dealing  with  these 

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WORDS    CLEARLY    INNOCENT.  91 

questions  by  a  variety  of  minute  averments  in  the  plaintiff's  declara- 
tion.    Thus,  it  was  necessary  that  there  should  be  a  colloquium,  an 
averment  that  the  defendant  was  speaking  of  the  plaintiff,  as  well 
as   constant  innuendoes  in    the  statement  of   the  words  themselves, 
"  he  (meaning  thereby  the  plaintiff).".     So,  too,  many  other  allega- 
tions were  required  describing  the  locality,  the  relationship  between 
the  various  -persons   mentioned,  and  all   the   surrounding  circum- 
stances necessary  to  fully  understand  the  defendant's  words.     And 
.these  matters  could  not  properly  be    proved    at   the    trial   unless 
they  were  set  out  on  the  record  ;  or  if  they  were,  and  the  plaintiff 
had'  a  verdict,   the    Court   would   subsequently    arrest    judgment, 
on  the  ground  that   it  did  not   appear  clearly  on   the    face  of  the 
record  that  the  words  [*119]   were  actionable.     And  this  techni- 
cality was  carried  to  an  absurd  extent.     Thus,  where  the  defend- 
ant  said,  "  Thou    art   a  murderer,  for   thou    art   the    fellow    that 
didst  kill  Mr.  Sydnam's  man,"  the  Court  of  Exchequer  Chamber,  on 
error  brought,  arrested  judgment,   because  there  was  no  averment 
that  any  man  of  Mr.  Sydnam's  had  in  fact  been  killed.     (Barrons  v. 
Ball  (161  r),  Cro.  Jac*  331.  See  Ratcliffy.  Michael,  ib.;  and  Upton 
v.  Pinfold,  Comyns,  267.)     Had  the  words  been  "  and  thou  art,"  in- 
stead of  "for  thou  art,"  the   plaintiff  would  probably  have  been 
allowed  to  recovei-.  (See  Minors  v.  Lee  ford,  Cro.  Jac.  114.)  Again, 
in  Ball  v.  Roane  (1593),  Cro.  Eliz.  308  the  words  were  :     "  There 
was  never  a  robbery  committed  within  forty  miles  of  Wellingbor- 
ough but  thou  hadst  thy  part  in  it."     After  a  verdict  for  the  plain- 
tiff, the-Court  arrested  judgment,  "Because  it  was  not  averred  there 
was  any  robbery  committed  within  forty  miles,  etc.,  for  otherwise 
it  is  no  slander."     So  in  Foster  v.  Browning  (1625),  Cro.  Jac,  688, 
•where  the  words  were,  "  Thou  art  as  arrant  a  thief  as   any  is  in 
England,"  the  Court  arrested  judgment,  because  the  plaintiff  had 
not    averred  "  that    there   was    any  thief  in  England."     (See  also 
Johnson  v.  Sir  John  Aylmer,  Cro.  Jac.  126  ;  Sir   Thomas  Holt  v. 
Astrigg,  Cro.  Jac.  184  ;    SlocornVs  Case,  Cro.  Car.  442.)     But  the 
climax  was  reached  in  a  case  cited  by  Dacy  v.   Clinch  (1661),  Sid. 
53,  where  the  defendant  hail  said  to  the  plaintiff,  "  As  sure  as  God 
governs  the  world,  or  King  James  this  kingdom,  you  are   a  thief." 
After  verdict  for  the  plaintiff,  the  defendant  moved  in   arrest   of 
judgment,  on  the  ground  that  there  was  no  averment  on  the  record 
that  God  did  govern  the  world,  or  King  James  this  kingdom.     But 
here  the  Court  drew  the  line,  and   held  that  "these  things  were  so 
apparent  "  that  neither  of  them  need  be  averred.     And  even  in  the 
present  century  instances   of   similar  technicality  are   not  wanting, 
though  their  absurdity  is  not  so  flagrant.    Thus,  in  Solomon  v.  Law- 
son,  8  Q.  B.  823  ;  15  L.  J.  Q.  B.  253  ;  10  Jur.   796,  the  libel  con- 
sisted of  two  letters  to  the  Times;  the  first  made  a  charge  generally 
on  "  the  authorities  "  at  St.  Helena;  the  second  letter  brought  it  home 
to  the  plaintiff  in   particular.     Neither  letter  was  thus   a  complete 
libel  in  itself.     In  the  first  count  of  the   declaration  the  first  letter 
was  fully  set  out  ;  in  the  second  count  both  letters  were  set  out  ver- 
batim.   The  first  count  was  held  bad.  because  it  set  out  only  half  the 
libel.  The  second  count  was  also  held  bad  because  the  pleader  in  set- 

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92  CONSTRUCTION    AND    CERTAINTY. 

ting  out  the  first  letter  for  the  second  time  had  introduced  it  with  the 
words  "  in  substance  as  follows."  The  Court  decided  that  it  ought 
to  have  been  set  out  verbatim  :  so  it  was  ;  but  because  the  pleader 
said  he  had  only  set  out  the  substance,  judgment  was  arrested. 
Lord  Denman  would,  it  [*120]  seems,  have  given  judgment  for  the 
plaintiff  had  the  pleader  used  the  word  "tenour"  instead  of  "  sub- 
stance." So,  too,  in  Aiajle  v.  Alexander,  7  Bing.  119;  1  Cr.  &  J. 
143  ;  4M.&  P.  870  ;  1  Tyrw.  9,  the  words  were  thus  set  out  with 
innuendoes  in  the  declaration:  "You  (meaning  the  said  plaintiff) 
are  a  regular  prover  under  bankruptcy  (meaning  that  the  said 
plaintiff  was  accustomed  to  prove  fictitious  debts  under  commis- 
sions of  bankruptcy)  ;  you  are  a  regular  bankrupt  maker  ;  if  it  was 
not  for  some  of  your  neighbors  your  shop  would  look  queer."  And 
the  Court  arrested  judgment  because  there  was  no  prefatory  aver- 
ment that  the  defendant  had  been  accustomed  to  employ  the  words 
"  prover  under  bankruptcy  "  in  the  meaning  set  out  in  the  innuendo. 
(See  also  Goldstein,  v.  JFbss  and  another,  6  B.  &  C.  154  ;  4  Bing. 
479  ;  9  D.  &  R.  197  ;  2  C.  &  P.  252  ;  1  M.  &  P.  402  ;  2  Y.  &  J. 
146  ;  and  other  cases  cited  ante,  p.  102.) 

But  now  by  sect.  61  of  the  Common  Law  Procedure  Act,  1852, 
the  colloquium  and  all  other  such  frivolous  averments  are  rendered 
unnecessary  ;  and  Order  XIX.  r.  4,  requires  that  only  material  facts 
need  be  -stated  in  the  pleadings.  The  pleader  must  judge  what  facts 
are  material  ;  and  he  will  also  insert  averments  which,  though  not 
essential,  will  help  to  make  the  case  clear,  by  explaining  what  is  to  fol- 
low (as  in  Foulger  v.  Newcomb,  L.  R.  2  Ex.  327  ;  36  L.  J.  Ex.  169  ;  15 
W.  R.  1181  ;  ie  L.  T.  595).  But  where  the  plaintiff  is  suing  for 
words  spoken  of  him  in  the  way  of  his  office,  profession,  or  trade, 
there  it  is  absolutely  necessary  to  aver  that  at  the  time  when  the 
words  were  spoken  the  plaintiff  held  such  office,  or  carried  on  such 
profession  or  trade.  And  there  should  also  be  an  averment  that  the 
words  were  spoken  by  the  defendant  with  reference  to  such  office, 
profession,  or  trade. 

1.  Certainty  of  the  Imputation, 

Where  words  are  sought  to  be  made  actionable,  as  charging  the 
plaintiff  with  the  commission  of  a  crime,  we  have  seen  that  a  crim- 
inal offence  must  be  specifically  imputed.  It  will  not  be  sufficient  to 
prove  words  which  only  amount  to  an  accusation  of  fraudulent,  dis- 
honest, vicious  or  immoral  conduct,  so  long  as  it  is  not  criminal  ;.  or 
of  a  mere  intention  to  commit  a  crime,  not  evidenced  by  any  overt  act. 
But  still  it  is  not  necessary  that  the  [*12l]  alleged  crime  should  be 
stated  with  all  the  technicality  or  precision  of  an  indictment,  if  the 
crime  be  imputed  in  the  ordinary  language  usually  employed  to  de- 
note it  in  lay  conversation.  All  that  is  requisite  is  that  the  by- 
standers should  clearly  understand  that  the  plaintiff  is  specially 
charged  with  the  commission  of  a  crime.  "The  meaning  of  the 
won  Is  is  to  be  gathered  from  the  vulgar  import,  and  not  from  any 
technical  legal  sense."  (Per  Buller,  J.,  in  Colman  v.  Godwin,  3 
Dougl.  91  ;  2  B.  &  C.  285,  n.) 

(164) 


CHARGES    OF    CRIME.  m  93 

Illustrations. 
Treason. 

The  following  words  have  been  held  sufficiently  definite  to  constitute  a  charge 
of  treason,  or  at  leasl  of  sedition,  and  therefore  actionable: — 
"  Thy  master  is  no  true  subject.'' 

Waldegrave  v.  Agas,  Cro.  Eliz.  191  ;  1  Roll.  Abr.  75. 
Sed  quaere,  Fowler  v.  Aston,  Cro.  Eliz.  268  ;  1  Roll.  Abr.  43. 
"  Thou  hast,    committed   treason    beyond    the  seas  ;  "    for  there  is  a  violent 
intendment  that  he  committed  treason  to  the  State  here,  and  not   to  a  foreign 
State. 

Lewisv.  Coke,  Cro.  Jac.  424. 
"  He  consented  to  the  late  rebels  in  the  North." 

Stapleton  v.  Frier,  Cro.  Eliz.  251. 
"  Thou  art  a  rebel,  and  all  that  keep  thee  company  are  rebels,  and  thou  art 
not  the  Queen's  friend." 

Bedston  v.  Eliot,  Cro.  Eliz.  638  ;  1  Roll.  Abr.  49. 
"  Thou  art  an  enemy  to  the  State.'' 

Charter  v.  Peter,  Cro.  Eliz.  602. 
"  He  has  the  pretender's  picture  in  his  room,  and  I  saw  him  drink  his  health. 
And  he  said  he  had  a  right  to  the  crown." 

Fry  v.  Carne  (1724),  8  Mod.  283. 

How  v.Prin  (1702),  Holt,  652  ;  7  Mod.  107  ;  2  Ld.  Raym.  812  ;  2 
Salk.  694  ;  1  Brown,  Py.  C.  64. 
"  Thou  hast  made  a  seditious  sermon,  and  moved  the  people  to  sedition  this 
day ." 

Philips  (B.  D.)v.  Badby,  1582,  cited  4  Rep.  19. 
But  to  say  merely  "  Thou  art  a  rebel,"  was  adjudged  not  actionable. 
Fountain  v.  Rogers  (1601),  Cro.  Eliz.  878. 

Murder. 

So  it  is  a  sufficient  charge  of  murder  to  say  : — 
"  Thou  hast  killed  thy  master's  cook." 

Cooper  v.  Smith,  Cro.  Jac.  423  ;  I  Roll.  Abr.  77. 
"  I  am  thoroughly  convinced  that  you  are  guilty  of  the  death  of  Daniel  Dolly, 
and  rather  than  you  should  want  a  hangman,  I  will  be  your  executioner." 

Pake  v.  Oldham,  Cowp.  275  ;  2  Wm.  Bl.  959. 
[  *122  ]  But  it  is  not  sufficient  to  say  : — 

"  Hext  seeks  my  life."     "Because  he  may  seek  his  life  lawfully  upon  just 
cause." 

Hext  v.  Yeomans,  4  Rep.  15. 
"He  was  the  cause  of  the  death  of  Dowland's  child,"   because  a  man  might 
innocently  cause  the  death  of  another  by  accident  ormisfortune. 
Miller  v.  Buekdon,  2  Buls.  10. 
"Thou   wouldst  have  killed  me,"  for  here   a  murderous  intention  only  is 
imputed. 

Dr.  Poe's  Case,  1  Vin.  Abr.  440,  cited  in  2  Buls.  206. 

Forgery. 

The  following  words  have  baen  held  a  sufficient  charge  of  forgery  : — 
"  This  is  a  counterfeit  warrant  made  by  Mr.  Stone." 

Stone  v.  Smalcombe,  Cro.  Jac.  648. 
"  Thou  hast  forged  a  privy  seal,  and  a  commission."     Per  cur.  "  '  A  commis- 
sion '  shall  be  intended  the  king's  commission,  under  the  privy  seal." 
Baal  'v.  Baggerley,  Cro.  Car.  326. 
"You  forged  my  name,"  although  it  is  not  stated  to  what  deed  or  instrument. 
Jones  v.  Heme,  2  Wits.  87- 
Overruling  Anon.,  3  Leon.  231  ;  1  Roll.  Ab.  65. 
(165) 


94  CONSTRUCTION    AND    CERTAINTY. 

Arsdn . 

"/never  sel  my  premises  on  fire,"  was  held  sufficiently  clear  in 
Gutter  v.  Gutter,  10  J.  P.  169. 

Bui  see  SweetappU  v.  Jesse,  5  B.  &  Ad.  27  ;  2  X.  &  M.  36. 
Barhom'8  Gase,4  Rep.  20;  Velv.  2L. 

I'! iiih,  zzlt  mi  nl . 

"  He  made  a  few  hundreds  in  my  service — God  only  knows  whether  honestly 
or  otherwise,"  is  a  sufficient  imputation  of  embezzlement. 

Ckyg  v.  Laffer,  3  Moore  &  Sc.  727  ;  10  Bing.  250. 

Larceny. 

The  following  words  area  suihcient  charge  of  larceny  : — 
"  Baker  stole  my  box-wood,  and  I  will  prove  it."  It  was  argued  that  it  did 
not  appear  from  the  words  that  the  box-wood  was  not  growing  ;  and  that  to  cut 
down  and  remove  growing  timber  is  a  trespass  , only,  not  a  larceny.  But  the 
Court  gave  judgment  for  the  plaintiff,  holding  that  "  ex  vi  termini"  stealing 
' '  did  import  felony. " 

Baker  v.  Pierce,  6  Mod.  23  ;  2  Salk.  695  ;Holt,  654. 
Overruling  Mason  v.  Ihompson,  Ilutt.  38. 
Gybbons  asked  May  :  "  Have  you  brought  home  the  forty  pounds  you  stole?" 
Held  that  an  action  lay. 

May  v.  Gybbons,  Cro.  Jac.  568. 
"  Thou  hast  stolen  our  bees,  and  thou  art  a  thief."     After  verdict  it  was  con- 
tended that  larceny  cannot  be  committed  of  bees,  unless  they  be  hived  ;   but  the 
[*123  ]  Court  held  that  the  subsequent  words  "thou  art  a   thief"  showed   that 
the  larceny  imputed  was  of  such  bees  as  could  be  stolen. 

Tibbs  v.  Smith,  3  Salk.  325  ;  Sir  Thos.  Kaym.  33. 
Minors  v.  Leeford,  Cro.  Jac.  114. 
"Thou  art  a  corn-stealer "  held  suihcient. 
Anon.  (1597),  Cro.  Eliz.  563. 
Smith  v.  Ward  (1624),  Cro.  Jac.  674. 
So  a  charge  of  being  "  privy  and  consenting  to  "  a  larceny  is  actionable. 

Mot  et  ux  v.  Butler,  Cro.  Car.  236. 
"  He  is  a  pickpocket  ;  he  picked  my  pocket  of  my  money,"  was  once  held 
an  insufficient  charge  of  larceny. 

Watts  v.  Byrnes,  2  Lev.  51  ;  1  Ventr.  213  ;  3  Salk.  325. 
But  now  this  would  clearly  be  held  sufficient. 

Bilker  v.  Pierce  supra  ;  2  Ld.  RajTin.  959. 
Stebbincj  v.   Warner,  11  Mod.  255. 
"  He  -was  put  into  the  round-house  for  stealing  ducks  at  Crowland." 

Beavor  v.  Hints,  2  Wilson,  300. 
"  You  have  been  cropped  for  felony." 

Wiley  v.  Campbell,  5  Monroe  (19  Kentucky),  396. 

But  it  is  not  actionable  in  America  to  say — 
"  You  as  good  as  stole  the  canoe." 

•   Stokes  v.  Arey,  8  Jones,  46. 
Or,  "  A  man  that  would  do  that  would  steal." 
Stees  v.  Kemble,  27  Penn.  St.  112. 

Receiving  Stolen  Goods. 

To  say,  "  I  have  been  robbed  of  three  dozen  winches  ;  you  bought  two,  one 
at  3s.,  one  at  2s.  ;  you  knew  well  when  you  bought  them  that  they  cost  me 
three  times  as  much  making  as  you  gave  for  them,  and  that  they  could  not 
have  been  honestly  come  by,"  is  a  sufficient  charge  of  receiving  stolen  goods, 
knowing  them  to  have  been  Hole  a. 

[An  indictment  which  merely  alleged  that  the  prisoner  knew  the  goods  were 
not  honestly  come  by  would  be  bad.     B.  v.  Wilson,  2  Mood.  C.  C.  52.] 

Alfred  v.  Farlow,  8  Q.  B.  854  ;  15  L.  J.  Q.  B.  258  ;  10  Jur.  714. 

(166) 


CHARGES    OF    CRIME.  95 

Clarke's  Case  de  Dorchester,  2  Rolle's  Rep.  136. 
King  v.  Bagg,  Cro.  Jac.  331. 

Bigamy. 

Mrs.  Heming  was  sister  to  Mr.  Alleyne.     The  defendant  said  : — "  It  has  been 
ascertained   beyond  all   doubt  that   Mr.    Alleyne   and    Mrs.  Heming  are  not 
brother  and  sister,  but  man   and  wife."     Held,  that  it  was  open  to  the  jury  to 
construe  this  as  a  charge  of  bigamy,  as  well  as  of  incest. 
Hi  tinng  and  wife  v.  Power,  10  M.  &  W.  564. 

Perjury. 

"  You  are  forsworn,"  without  more,  is  insufficient. 
Stanhope  v.  Blith  (1585),  4  Rep.  15. 
Holt  v.  Scholefield,  .6  T.  R.  691. 
Hall  v.   Weedon,  8  D.  &  If.  140. 
[*  124]     But  to  say  they  "  did  not  scruple  to  turn  affidavit-men,"  is  sufficient. 
Poach  v.  Garvan,   Re  Read  and  Huggonson,   (1742),  2  Atk.  469  ;  2 
Dick.  794. 
"Thou  art  forsworn  in  a  court  of  record,  and  that  I  will  prove  !"  was  held 
sufficient ;  though  it  was  argued  after  verdict  that  he  might  only  have  been 
talking  in  the  court-house  and  so  forsworn  himself  ;  but  the  Court  held  that 
the  w^ords  would  naturally    mean  forsworn  while  giving   evidence    in  some 
judicial  proceeding  in  a  court  of  record. 

Ceely  v.  Hoskins,  Cro.  Car.  509. 
Plaintiff  had  recently  given  evidence  in  an  action  against  defendant,  who 
thereupon  wrote  and  published  of  him  : — "  The  man  at  the  sign  of  the  Bible  is 
no  slouch  at  swearing  to  an  old  story."  Held,  that  if  these  words  did  not 
amount  to  a  charge  of  actual  perjury,  they  at  least  imputed  that  he  swore 
with  levity  without  due  regard  to  the  solemnity  of  an  oath  ;  and'  therefore, 
being  written,  were  actionable. 

Steele  v.  Southicicke,  9  Johns,  (New  York)  214  ;  see  post,  p.  132. 

False  Pretences. 

The  words  "He  has  defrauded  a  mealman  of  a  roan  horse,"  held  not  to 
imply  a  criminal  act  of  fraud  ;  as  it  is  not  slated  that  the  mealman  was 
induced  to  part  with  his  property  by  means  of  any  false  pretence. 

Richardson  v.  Allen,  2  Chit.  657. 

Needham  v.  Bowling,  15  L.  J.  C.  P.  9. 

Attempt  to  Commit  a  Felony. 

The  following  words  were  held  sufficient : — 
"He  sought  to  murder  me  and  I  can  prove  it." 

Preston  v.  Binder,  Cro.  Eliz.  308. 
"  She  would  have  cut  her  husband's  throat  and  did  attempt  it." 

Scot  et  ux.  v.  Miliar,  Lane,  98  ;  1  Vin.  Abr.  440. 

The  following  insufficient : — ■ 
"  Thou  wouldst  have  killed  me." 

Br.  Boe's  Case,  cited  in  Murrey's  Case.  2  Buls.  206  ;  1  Vin.  Abr.  440. 
"Sir  Harbert  Crofts  keepeth  men  to  rob  me." 

Sir  Harbert  Crofts  v.  Brown,  3  Buls.  167. 
"  He  would  have  robbed  me." 

Stoner  v.  Audely,  Cro.  Eliz.  250. 
For  here  no  overt  act  is  charged,  and  mere  intention  is  not  criminal. 

Baton  v.  Allen,  4  Rep.  16  b ;  Cro.  Eliz.  684. 

Other  instances  of  a  criminal  charge  indirectly  made  will  be  found  in 
Snell  v.   Webling,  2  Lev.  150  ;  1  Vent.  276. 
Woolnoth  v.  Afeadotcs,  5  East,  463  ;  2  Smith,  28. 
(167) 


96  CONSTRUCTION    AND    CERTAINTY. 

Where  words  clearly  refer  to  the  plaintiff's  office  and  his  conduct 
therein,  or  otherwise  clearly  touch  and  injure  him  therein,  it  is 
unnecessary  that  the  defendant  should  [*125]  expressly  name  his 
office  or  restrict  his  words  thereto  ;  it  shall  be  intended  that  he  was 
speaking  of  him  in  the  way  of  his  office  or  trade'. 

Illustrations. 

To  say  of  a  clerk,  "  He  cozened  hi.s  master  "  is  actionable,  thorgli  the  defend- 
ant did  not  expressb  state  that  the  cozening  was  done  in  the  execution  of  the 
clerk's  official  duties  ;  that  will  be  intended. 

Reignald's  Case  (1640),  Cro.  Car.  5(5:5. 
Eeeve.Y.  Holgate,  (1672),  2  Lev.  62. 
To  say  of  a.  trader,  "  He  has  been  arrested  for  debt,"  is  actionable,  though  no 
express  reference  he  made  to  his  trade  at  the  time  of  publication  ;  for  such  words 
must  necessarily  affect  his  credit  in  his  trade. 

Jones  v.  Littler,  7  M.  &  W.  428  ;  10  L.  J.  Ex.  171. 

It  is  not  necessary  that  the  defendant  should  in  so  many  words 
expressly  state  the  plaintiff  has  committed  a  particular  crime.  So, 
where  a  charge  is  made  against  a  trader,  it  need  not  be  conveyed 
in  positive  and  direct  language.  Any  words  which  distinctly  assume 
or  imply  the  plaintiff's  guilt,  are  sufficient.  But  words  merely 
imputing  to  the  plaintiff  a  criminal  intention  or  design  are  not 
actionable,  so  long  as  no  criminal  act  is  directly  or  indirectly 
assigned.  So,  too,  words  of  mere  suspicion,  not  amounting  to  a 
charge  of  felony,  are  not  actionable  ;  and  no  innuendo  can  make 
them  so.   '  (See  ante,  pp.  5  7,  58.) 

Illustrations. 

The  following  wTords  have  been  held  to  convey  an  imputation  with  sufficient 
certainty  and  precision  : — 

"  I  believe  all  is  not  well  with  Daniel  Vivian  ;  there  be  many  merchants  who 
have  lately  failed,  and  I  expect  no  otherwise  of  Daniel  Vivian  ;  "  for  this  is  a 
charge  of  present  pecuniary  embarrassment. 

Vivian  v.  Willet,  3  Salk.  326  ;    Sir  Thos.  Raym.  207. 
"Two  dyers  are  gone  off,  and  for  aught  I  know  Harrison  will  be  so  too 
within  this  twelvemonth." 

Harrison  v.  Thornborough,  10  Mod.  196  ;  Gilb.  Cas.  114. 
"He  has  become  so  inflated  with  self-importance  by  the  few  hundreds  made 
in  my  service — God  only  knows  whether  honestly  or  otherwise  ;  "  for  this  is  an 
insinuation  of  embezzlement. 

Clegg  v.  Laffer,  3  Moore  &  Sc.  727  ;  10  Bing.  250. 
[*126]  "  I  think  in  my  conscience  if  Sir  John  might  have  his  will,  he  would 
kill  the  king  ;  "  for  this  is  a  charge  of  compassing  the  king's  death. 
Sidnam  v.  Mayo,  1  Roll.  Rep.  427  ;  Cro.  Jac.  407. 
Peake  v.  Oldham,  Cowp.  275;  2  Wm.  Bl.  959,  ante,  p.  121. 
"Thou  art  a  corn-stealer  ;  "  in  spite  of  the  objection  "  that  it  might  be  that 
the  corn  was  growing,  and  so  no  felony." 
Anon.  (1597),  Cro.  Eliz.  563. 
So  where  the  defendant,  on  hearing  that  his  barns  were  burnt  down,  said,  "  I 
cannot  imagine  who  it  should  be  but  the  Lord  Sturton." 
Lord  Sturton  v.  Chaffin  (1563),  Moore,  142. 
To  state  that  criminal  proceedings  are  about  to  be  taken  against  the  plaintiff 
(e.  g. ,  that  the   Attorney-General   had  directed  a  certain  attorney  to  prosecute 
him  for  perjury),  is  actionable,  although  the  speaker  does  not  expressly  assert 
that  the  plaintiff  is  guilt v  of  the  charge. 
Roberts  v.  Camden,  9  East',  93. 
'I  <■  in  rust  v.  Chambers,  1  Stark.  67. 

(168) 


* 


INDIRECT    IMPUTATION.  97 

But  where  the  defendant  said,  "I  have  a  suspicion  that  you  and  B.  have 
robbed  my  house/and  therefore  I  take  you  into  custody,"  the  jury  found  that 
the  words"  did  not  amount  to  a  direct  charge  of  felony,  but  only  indicated  what 
was  passing  in  defendant's  mind.     Ante,  p.  58. 

Tozer  v.  Mashford,  6  Ex.  539-,  20  L.  J.  Ex.  22.-,. 
Harrison  v.  King,  4 .Price,  46  ;  7  Taunt.  431  ;  1  B.  &  Aid.  161. 
No  action  lies  for  such  words  as  "  Thou  deservest  to  be  hanged  ;  "  for  here 
no  fact  is  asserted  against  the  plaintiff. 

Hake  v.  Molton,  Roll.  Abr.  43. 
Gockaine  v.  Hopkins,  2  Lev.  214. 
But  it  is  actionable  to  say,  "  I  am  of  opinion  that  such  a  Privy  Councillor  is 
a  traitor,"  or  "I  think  such  a  judge  is  corrupt."    Per  Wyndham  and  Scroggs, 
JJ.,  and  North,  C.  J.,  in 

Lord  Townshend  v.  Dr.  Hughes,  2  Mod.  166. 
So,  too,  if  the  charge  incidentally  slips  into  a  conversation  on  another  matter, 
an  action  lies  ;  as  where  the  defendant  said,  "  Mr.  Wmgfield,  you  never  thought 
well  of  me  since  Graves  did  steal  my  lamb  ;  "  and  it  was  held  that  Graves  could 
sue. 

Graves'  Case,  Cro.  Eliz.  289. 
Or,  "I  dealt  not  so  unkindly  with  you  when  you  stole  a  sack  of  my  corn." 

Cooper  v.  Hawkeswell,  2  Mod.  58. 
A  libellous  charge  may  be  insinuated  in  a  question:  e.  g.,    "We  should  be 
dad  to  know  how  many  popish  priests  enter  the  nunneries  at  Scorton  and 
Darlington  each  week?  and  also  how  many  infants  are  born  in  them  every 
year,  and  what   becomes  of  them  ?  whether  the  holy  fathers  bring  them  up  or 
not,  or  whether  the  innocents  are  murdered  out  of  hand  or  not."     Alderson. 
B.,  directed  the  jury  that  if  they  thought  the  defendant  by  asking  the  question 
meant  to  assert  the  facts  insinuated,  the  passage  was  a  libel. 
R.  v.  Gathercole,  2  Lew.  C.  C.  237,  255. 
Though  the  sentence  be  in  the  form  of  a  question,  the  words  may  amount  to 
an  affirmative  charge. 

Nelson  v.  Staff,  Cro.  Jac.  422. 
May  v.  Gybbons,  Cro .  Jae  568. 
But  see  Ha  rut*  v.  Holloway,  8  T.  R.  150. 
[*  127]  So  a  slander  may  be  conveyed  in  a  question  and  answer,  or  in  a  series 
of  questions  and  answers. 

Gainford  v.  Tuke  (1620),  Cro.  Jac.  536. 
Haywood  v.  Nayler  (1636),  1  Roll.  Abr.  50. 
Ward  v.  Reynolds  (1714),  cited  Cowp.  278. 

A  libellous  charge  may  be  sufficiently  conveyed  by  a  mere  adjec- 
tive.   (  Osborn  v.  Pool,  1  Ld.  Raym.  236.) 

"  Thou  art  a  leprous  knave." 

Taylor  v.  Perkins,  Cro.  Jac  144  ;  1  Roll.  Abr.  44. 
"  He  is  a  bankrupt  knave,"  spoken  of  a  trader. 
Squire  v.  Johns,  Cro.  Jac.  585. 
Loyd  v.  Pi  arse,  Cro.  Jac.  424. 
"  Thou  art  a  broken  fellow." 

Anon.,  Holt,  652. 
"  Mr.  Bittridge  is  a  perjured  old  knave." 
.    BittHdge's  Case.  14  Rep.  19. 
Croford  v.  Blisse,  2  Bids.  150. 
"  A  libellous  journalist,"  a  phrase  which  will  be  taken  to  mean  that  the  plain- 
tiff habitually  publishes  libels  in  his  paper,  not  that  he  once  published  one  libel 
merely. 

Wakley  v. Cook  and  ILaley,  4  Exch.  511;   19  L.  J.  Ex.  91. 

So  if  the  defendant  is  obviously  only  repeating  gossip,  not  assert- 
ing the  charge  as  a  fact  within  his  own  knowledge. 

"  I  heard  you  had  run  away  "  (sr.  from  your  creditors). 
Davis  v.  Lewis,  7  T.  R.  17. 
7  Lib.  &  Slan.  (169) 


98  CONSTRUCTION    AND    CERTAINTY. 

"  Thou  art  a  sheep-stealing  rogue,  and  Farmer  Parker  told  me  so." 

Gardiner  v.  Atwater,  Sayer,  205. 
"  One  told  me  that  he  heard  say  that  Mistress  Meggs  had  poisoned  her  first 
husband." 

Meggs  v.  Griffith  (vel  Griffin),  Cro.  Eliz.  400;  Moore,  408. 

Bead's  Case,  Cro.  Eliz.  645. 
"Did  you  not  hear  that  C.  is  guilty  of  treason  ?" 

Per.  cur.  in  Etui  of  Northampton's  Case,  12  Rep.  134. 

2.      Certainty  as  to  the  Person  defamed. 

The  defamatory"  words  must  refer  to  some  ascertained  or  ascer- 
tainable person,  and  that  person  must  be  the  plaintiff. 

If  the  words  used  really  contain  no  reflection  on  any  particular 
individual,  no  averment  or  innuendo  can  make  them  defamatory. 
"  An  innuendo  cannot  make  the  person  certain  which  was  incertain 
before."   (4  Rep.  17  a.) 

Illustrations. 

[*128]  "  Suppose  the  words  to  be  '  a  murder  was  committed  in  A.'s  house  last 
night :  '  no  introduction  can  warrant  the  innuendo  '  meaning  that  B.  committed 
the  said  murder  ; '  nor  would  it  be  helped  by  the  finding  of  the  jury  for  the 
plaintiff.  For  the  Court  must  see  that  the  words  do  not  and  cannot  mean  it, 
and  would  arrest  the  judgment  accordingly.  Id  certnm  est ,  quod  ccrtum  recldi 
potest."     Per  Lord  Denman,  C.  J.,  in 

Solomon  v.  Lawson,  8  Q.  B.  837  ;  15  L.  J.  Q.  B.  257;  10  Jur.  706. 

"  If  a  man  wrote  that  all  lawyers  were  thieves,  no  particular  lawyer  could  sue 
him  unless  there  is  something  to  point  to  the  particular  individual."  Per 
Wilies,  J.,  in 

Eastwood  v.  Holmes,  1  F.  &  F.  349. 

To  assert  that  an  acceptance  is  a  forgery  is  no  libel  on  the  drawer,  unless  it 
somehow  appear  that  it  was  he  who  was  charged  with  forging  it. 
Stockleu  v.  Clement,  4  Bing.  162;  12  Moore,  376 

The  defendant  in  a  speech  commented  severely  on  the  discipline  of  the  Roman* 
Catholic  church,  and  the  degrading  punishments  imposed  on  penitents.  He 
read  from  a  paper  an  account  given  by  three  policemen  of  the  severe  penance 
imposed  on  a  poor  Irishman.  It  appeared  incidentally  from  this  report  that  the 
Irishman  had  told  the  policemen  that  his  priest  would  not  administer  the  Sacra- 
ment to  him  till  the  penance  was  performed.  The  plaintiff  averred  that  he  was 
the  Irishman's  priest,  but  it  did  not  appear  how  enjoining  such  a  penance  on  an 
Irishman  would  affect  the  character  of  a  Roman  Catholic  priest.  The  alleged 
libel  was  in  no  other  way  connected  with  the  plaintiff.  Held,  no  libel,  and  no 
slander,  of  the  plaintiff. 

Hearne  v.  Stowell,  12  A.  &  E.  719  ;  6  Jur.  458  ;  4  P.  &  D.  696. 

Though  the  words  used  may  at  first  sight  appear  only  to  apply  to 
a  class  of  individuals,  and  not  to  be  specially  defamatory  of  any 
particular  member  of  that  class,  still  an  action  may  be  maintained 
by  any  one  individual  of  that  class  who  can  satisfy  the  jury  that 
the  words  referred  especially  to  himself.  The  words  must  be  capa- 
ble of  bearing  such  special  application,  or  the  judge  should  stop  the 
case.  And  there  must  be  an  averment  in  the  statement  of  claim, 
that  the  words  were  spoken  of  the  plaintiff.  The  plaintiff  may  also 
aver  extraneous  facts,  if  any,  showing  that  he  was  the  person 
expressly  referred  to. 

Formerly  it  was  absolutely  necessary,  as  we  have  seen,  to  over- 
load the  pleadings  with  averments,  such  as,  that  the  defendant  was 
talking  to  J.S.  about  the  plaintiff,  and  about  the  plaintiff's  conduct  in 

(170) 


CERTAINTY  AS  TO  THE  PERSON  DEFAMED.  99 

and  about  a  certain  matter  ;  and  that  in  the  course  of  such  conver- 
sation he  spoke  of  and  concerning  the  plaintiff,  and  of  and  concern- 
ing the  [*129]  said  matter,  the  words  following — that  is  to  say,  &c.  A 
great  many  other  details  had  to  be  formally  set  out  in  order  to  sup- 
port the  subsequent  brief  innuendo,  "  he  (meaning  the  plaintiff)." 
And  then,  too,  the  introductory  averments  had  to  be  properly  con- 
nected with  the  innuendo,  or  their  presence  was  of  no  avail. 
(Clement  v.  Fisher,  1  B.  &  C.  459  ;  1  M.  &  R.  281.)  But  now  all 
such  pitfalls  are  removed  by  the  Common  Law  Procedure  Act, 
1852,  s.  61.  No  such  averments  are  any  longer  necessary  ;  the 
innuendo  alone  is  sufficient.  (Turner v.  Mery  weather,  7  C.  B.  251; 
18  L.  J.  C.  P.  155  ;  13  Jur.  683  ;  and  in  error,  19  L.  J.  C.  P.  10.) 
And  the  decision  of  the  jury  on  the  point  is  final.  After  a  verdict 
for  the  plaintiff,  the  defendant  can  no  longer  argue  that  it  does  not 
sufficiently  appear  to  whom  the  words  relate. 

And  this  is  no  breach  of  the  rule  that  the  office  of  the  innuendo 
is  to  explain,  and  not  to  extend,  the  sense  of  the  defamatory  mat- 
ter. For  here  the  innuendo  does  not  extend  the  meaning,  it  only 
points  out  the  particular  individual  to  whom  the  matter  in  itself 
defamatory  does  in  fact  apply. 

So,  if  the  words  spoken  or  written,  though  plain  in  themselves, 
apply  equally  well  to  more  persons  than  one,  evidence  may  be 
given  both  of  the  cause  and  occasion  of  publication,  and  of  all  the 
surrounding  circumstances  affecting  the  relation  between  the  par- 
ties, and  also  of  any  subsequent  article  referring  to  the  former  one 
or  of  any  statement  or  declaration  made  by  the  defendant  as  to 
the  person  referred  to.  (Bar well  v.  Adkins,  1  M.  &  Gr.  807  ;  2 
Scott,  N.  R.  11  ;  Knapp  v.  Fuller,  55  Vermont,  311  ;  45  Amer. 
R.  618.)  The  plaintiff  may  also  call  at  the  trial  his  friends,  or 
those  acquainted  with  the  circumstances,  to  state  that  on  reading 
the  libel  they  at  once  concluded  that  it  was  aimed  at  the  plaintiff. 
(Bourke  v.  Warren,  2  C.  &  P.  307  ;  Broome  v.  Gosden,  1  C.  B. 
728.)  If  the  application  to  a  particular  individual  can  be  gener- 
ally perceived,  the  publication  is  a  libel  on  him,  however  general 
its  language  may  be.  "  Whether  a  man  is  called  by  one  name,  or 
whether  he  is  called  by  another,  or  whether  he  is  described  by  a 
pretended  description  of  a  class  to  which  he  is  known  to  belong,  if 
those  who  look  on  know  well  who  is  aimed  at,  [*130j  the  very 
same  injury  is  inflicted,  the  very  same  thing  is  in  fact  done,  as 
would  be  done  if  his  name  and  Christian  name  were  ten  times 
repeated."  (Per  Lord  Campbell,  C.  J.,  inXe  Fanu  and  another  v. 
Malcolmson,  1  H.  L.  C.  668.) 

Where  the  libel  consists  of  an  effigy,  picture,  or  caricature,  care 
should  be  taken  to  show  by  proper  innuendoes  and  averments  the 
libellous  nature  of  the  representation,  and  its  especial  reference  to 
the  plaintiff.  It  is  often  in  such  cases  difficult  for  the  plaintiff  to 
prove  that  he  is  the  person  caricatured. 

Illustrations. 
Where  plaintiff's  house  had  been  insured  and  burnt  down,  and   the  insur- 

(171) 


100  CONSTRUCTION    AND    CERTAINTY. 


ance  company  at  first  demurred  to  pay,  but  ultimately  did  pay,  the  insurance 
liiimi'v,  and  defendant  subsequently,  iu  the  course  of  a  quarrel  with  the  plain- 
tiff, said,  in  the  presence  of  others,  "  I  never  set  my  premises  on  lire/'  and  "  1 
was  never  accused  of  setting  my  premises  on  tire,"  this  was  held  to  lie  a  slander 
on  the  plaintiff. 

Gutter  v.  Cutler,  10  J.  P.  169. 
And  see  Snell  v.   Welling,  2  Lev.  150. 
Clerk  v.  Dyer,  8  Mod.  290. 
Words  complained  of  : —  "  We  would  exhort   the  medical   officers  to  avoid 
the  traps  set  for  them  by  desperate  adventurers  (innuendo,  thereby  meaning  the 
plaintiff  among  others),  who,  participating  in  their  efforts,  would  inevitabjy 
cover  them  with  ridicule  and  disrepute."     The  jury  found  that  the  words  were 
intended  to  apply  to  the  plaintiff.     Judgment  accordingly  for  the  plaintiff. 
WaMey  v.  Healey,  7  C.  B.  591 ;  18  L.  J.  C.  P.  241. 
A  newspaper  article  imputed  that  "in  some  of  the  Irish  factories"  cruelties 
were  practised  upon  the  workpeople.     Innuendo,  "  in  the  factory  of  the  plain- 
tiffs," who  were  manufacturers.     The  jury  were  satisfied  that  the  newspaper 
was  referring  especially  to  the  plaintiffs' factory,  and  found  a  verdict  for  the 
plaintiffs,  and  the  House  of  Lords  held  the  declaration  good. 

Le  Farm  and  another  v.  Malcolmsoh,  1  H.  L.  C.  637  ;  13  L.  T. 
(O.  S.)61;  8Ir.  L.  R.  418. 
Plaintiff  had  been  in  defendant's  employment  as  a  gardener,  and  wTas  dis- 
missed by  him  and  entered  Mr.  Pierce's  service.  Defendant  wrote  to  Mr. 
Pierce  that  he  had  dismissed  plaintiff  for  dishonesty,  adding,  "  I  have  reason  to 
suppose  that  many  of  the  flowers  of  which  I  have  been  robbed  are  growing 
upon  your  premises."  An  innuendo,  "  thereby  meaning  that  the  plaintiff  was 
guilty'  of  larceny,  and  had  stolen  defendant's  flowers  and  hail  disposed  of 
them  unlawfully  to  Mr.  Pierce,  &c,"  was  held  good. 

Williams  v.  Gardiner,  1  M.  &  W.  245  ;  1  Tyr.  &  Gr.  578  ;  2  C.  M. 
&  R.  78. 
"  There  is  strong  reason  for  believing  that  a  considerable  sum  of  money  wras 
transferred  by  power  of  attorney  obtained  by  undue  influence  ;  "  an  innuendo 
"meaning  as  a  fact  that  the  plaintiff  had  by  undue  influence  procured  the 
["131]  money  to  be  transferred,"  was  held  not  too  wide  ;  for  such  would  be 
the  meaning  conveyed  to  readers  by  the  defendant's  insinuations. 

Turner  v  Merywedther,  7  C.  B.  251;  18  L  J.  C.  P.  155  ;  13  Jur. 
683  ;  19  L.  J.  C.  P.  10. 
If  asterisks  be  put  instead  of  the  name  of  the  party  libelled,  it  is  sufficient 
thai  those  who  know  the  plaintiff  should  be  able  to  gather  from  the  libel  that 
he  is  the  person  meant;  it  is  not  necessary  that  all  the  world  should  under- 
stand it,  so  long  as  the  meaning  of  the  paragraph  is  clear  to  the  plaintiff's 
acquaintances. 

Bourke  v.  Warren,  2  C.  &  P  307. 

Some  libellous  verses  were  written  about  "  L y,  the  Bum;"   the  Court 

was  sal istied  in  spite  of  the  finding  of  the  jury  that  the  words  related  to  the 
plaintiff,  a  sheriff's  officer. 

Levi  v.  Milne,  4  Bing.  195  ;  12  Moore,  418. 
"  All  the  libellers  of  the  kingdom  know  now  that  printing  initial  letters  will 
not  serve  the  (urn,   for  that  objection    has    been    long   got    over."     Per  Lord 
Ilardwicke  in 

Roach  v.  Garvan,  Re  Read  and   llnr/r/onson  (1742),  2  Atk.  470;    2 
Dick.  794. 
"  His  name  wras  O'B."      (meaning  thereby  the  plaintiff).      This  was  held 
sufficient  in 

O'Brien  v.  Clement,  16  M.  &  W.  159  ;  16  L.  J.  Ex.  77. 
To  say,  "  I  have  seen  women  steal   yarn  before  "  may  amount  to  a  charge  of 
larceny  against  some  particular  woman  now;    provided  there  be  proper  aver- 
ments in  the  pleadings  and  sufficient  evidence  of  the  surrounding  circumstances 
at  the  trial. 

Hart  v.  Coy,  40Ind.553. 
To  say,  "  I  believe  that  will  to  be  a  rank  forgery"  may  be  a  slander  on  the 
solicitor  who  prepared  it  and  attested  the  signature. 

(172) 


CERTAINTY  AS  TO  THE  PERSON  DEFAMED.  101 

Seaman  v.  Netherclift,  1  C.  P.  D.  540  ;  45  L.  J.  C.  P.  798;  24  \Y. 
R.  884;  34  L.  T.  878.  . 
There  appeared  in  Misfs  Weekly  Journal  an  account  professedly  of  certain 
intrigues,  &c,  at  the  Persian  Court,  really,  at  the  English.  The  late  King 
George  I.  was  described  under  the  name  of  "  Merewits,"  George  II.  appeared 
as  "Esreff,"  the  Queen  as  "Sultana,"  while  a  most  engaging  portrait  was 
drawn  of  the  Pretender  under  the  name  of  "  Sophi."  It  was  objected  on  behalf 
of  the  prisoner  that  there  was  no  evidence  that  the  author,  intended  his  seem- 
ingly harmless  tale  to  be  thus  interpreted  and  applied  :  but  the  Court  held  that 
they  must  give  it  the  same  meaning  as  the  generality  of  readers  would  undoubt- 
edly put  upon  it. 

R.  v.  Clerk  (1729),  1  Barnard,  804. 
If  the  defendant  says  "  A.  or  B."  committed  such  a  felony,  both  A.  and  B. 
or  either  of  them  can  sue,  for  both  are  brought  into  suspicion. 
Anon.,  1  Roll   Abr.  81. 
Ingalls  v.  Allen,  1  Breese,  233. 
In  Falkner  v.  Cooper,  (1678),  Carter,  55,  the  Court  was  divided  on  this  point. 
"  You  or  Harrison  hired  one  Bell  to  forswear  himself."     Harrison  can  sue. 

Harrison  v.  Thornborough,   10  Mod.   196 ;    Gilb.  Cas.  in  Law  and 
Eq.  114. 
If  a  man  says  "  My  brother,"  or  "  my  enemy"  is  perjured,  and  hath  only  one 
brother  or  one  enemy,  such  brother  or  enemy  can  sue  ;  but  if  he  says,  "  One  of 
[*132]  my  brothers  is  perjured,"  and  he  hath  several  brothers,  no  one  of  them 
can  sue  [without  special  circumstances  to  show  to  which  one  he  referred]. 
Jones  v.  Davers,  Cro.  Eliz.  497  ;  1  Roll.  Abr.  74. 
Wiseman  v.  Wiseman,  Cro.  Jac.  107. 
But  where  seventeen  men  were  indicted  for  conspiracy,  and  A.  said,  "  These 
defendants  are  those  that  helped  to  murder  Henry  Farrer,"  each  one  of  the 
defendants  can  bring  a  separate  action  as  much  as  if  they  each  had  been  spe- 
cially named. 

Foxcroft  v.  Lacy,  Hobart,  89  ;  1  Roll.  Abr.  75. 
Defendant  wrote  and  published  of  plaintiff,  a  bookseller  :    "  The  man  at  the 
siffn  of  the  Bible  is  no  slouch  at  swearing  to  an  old  story."     The  sign  over 
plaintiff's  shop  was  a  book,  lettered  "  Bible,"  and  he  had  recently  given  evidence 
against  defendant  in  another  action.     Held,  that  he  could  recover. 
Steele  v.  Southwick,  9  Johns.  (New  York)  214. 
A.  said  to  B.,  "  One  of  us  two  is  perjured,"  B.  answered  "  It  is  not  I,"  and 
A.  replied,  "lam  sure  it  is  not  I."     B.   can  sue  A.  for  charging  him  with 
perjury. 

Coe  v.  Chambers,  1  Roll.  Abr.  75  ;  Vin.  Abr.  c.  b.  4, 
The  defendant  wrote  and  published  that  his  hat  had  been  stolen  by  some  of 
the  members  of  No.  12  Hose  Company.  This  hose  company  was  a  volunteer 
tire  brigade  unincorporated,  and  the  members  brought  a  joint  action.  Held,  that 
the  action  could  not  be  maintained,  and  that  the  defendant  could  not  be  com- 
pelled to  declare  to  which  individual  members  he  referred. 

Oirand  v.  Beaeh,  3E.  D.  Smith  (New  York  City  Common  Pleas),  337. 
So  if  a  man  says  to  a  plaintiff's  servant,  "Thy  master  Brown  hath  robbed 
me,"  Brown  can  sue  ;  for  it  shall  not  be  intended  that  the  person  addressed  had 
more  than  one  master  of  the  name  of  Brown.  So  if  the  defendant  had  said, 
"Thy  master,"  simpliciter  ;  or  to  a  son,  "Thy  father;"  to  a  wife,  "Thy 
husband." 

Per  Haughton,  J.,  in  Lewes  v.  Walter,  (1617),  3  Bulstr.  226. 
Brown  v.  Low  or  Lane,  Cro.  Jac.  443  ;  1  Roll.  Abr.  79. 
Walde re/rave  v.  Agas,  Cro.  Eliz.  191.  n 

But  if  the  defendant  said  to  a  master,  "One  of  thy  servants  hath  robbed  me, 
in  the  absence  of  special  circumstances  no  one  could  sue  ;  for  it  is  not  apparent 
who  is  the  person  slandered. 

James  v.  But  lech,  4  Rep.  17. 
So  where  a  party  in  a  cause  said  to  three  men  who  had  just  given  evidence 
against  him,  "  One  of  you  three  is  perjured,"  no  action  lies. 
Sir  John  Bourns  Cane,  cited  Cro.  Eliz.  497. 
Where  the  defendant  said  to  his  companion  B.,    "  He  that  goeth  before  thee 

(173) 


102  CONSTRUCTION    AND    CKKTAINTY. 

is  perjured,"  the  plaintiff  can  sue,  if  he  aver  and  prove  that  lie  was  the  person 
who  was  at  thai  moment  walking  before  B. 

Aish  v.  Oerish,  1  Roll.  Abr.  81. 

A  libel  was  published  on  a  "diabolical  character,"  who,  "  like  Polyphemus. 

the  man-eater,  lias  but  one  eve,  and  is  well  known  to  all  persons  acquainted 

with  the  name  of  a  certain  noble  circumnavigator."     The  plaintiff  had  but  one 

eye  and  his  name  was  ['Anson  ;  SO  it  was  clear  that  he  was  the  person  referred  to. 

T 'Anson   v.  Stuart,   1  T.  R.    748;    2  Smith's  L.  ('as.  (6th  ed.),  57, 
[omitted  in  7th  and  8th  eds.  ]  ; 

Fleetwood  v.  Curl,  Cro.  Jac.  557  ;  Hob.  2(58. 
[*  133]  In  a  recent  ease  the  libel  did  not  name  the  person  alluded  to;  but 
described  him  "as  a  man  of  high  descent,  who  has  been  regarded  as  a  man  not 
only  of  re  lined  tastes  and  studious  habits,  but  as  an  artist  of  somewhat  more 
than  ordinary  ability."  The  relator  swore  that  he  believed  that  the  libel  was 
intended  to  refer  to  himself.  The  Duke  of  Sutherland  and  others  of  his 
friends  considered  that  it  would  be  generally  understood  as  applying  to  him  ; 
and  a  rule  was  granted.  But  upon  the  argument  of  the  rule,  the  publisher  and 
the  author  of  the  libel  both  swore  positively  that  the  relator  was  not  the  person 
referred  to,  and  that  they  were  not  in  fact*  aware  that  he  was  either  a  man  of 
refined  tastes  and  studious  habits,  or  an  artist  of  somewhat  more  than  ordinary 
ability.     And  the  rule  was  therefore  discharged. 

li.  v.  Barnard,  Ex  parte  Lord  11.  Gower,  43  J.  P.  1?.7. 

Words  defamatory  of  A.  may  in  some  cases  be  also  indirectly 
defamatory  of  B. 

Illustrations. 

Where  a  married  man  was  called  "  cuckold  "  in  the  City  of  London,  his  wife 
could  sue  ;  for  it  was  tantamount  to  calling  her  "  whore." 
'      Vicars  v.   Worth,   1  Stra.  471. 

Hodgkins  et  ux.  v.  Corbet  et  nx.,  1  Stra.  545. 
Slander  addressed  to  plaintiff's  wife  : — "  You  area  nuisance  to  live  beside  of . 
You  are  a  bawd  ;  and  your  house  is  no  better  than  a  bawdy-house."  Held, 
that  the  plaintiff  could  maintain  the  action  without  joining  his  wife,  and  with- 
out proving  special  damage  ;  because  if  in  fact  his  wife  did  keep  a  bawdy-house, 
the  plaintiff  could  be  indicted  fm-  it. 

Suckle  v.  Reynold*,  7  0.  B.  N.  S.  114. 

Where  the  words  prima  facie  apply  only  to  a  thing,  and  not  to 
a  person,  still  if  the  owner  of  the  thing  can  show  that  the  words 
substantially  reflect  upon  him,  he  may  sue,  without  giving  proof  of 
special  damage  and  without  proving  malice. 

Illustrations. 

To  write  and  publish  that  plaintiff's  ship  is  unseaworthy  and  has  been  sold  to 
the  Jews  to  carry  convicts,  is  a  libel  upon  the  plaintiff  in  the  way  of  his  busi- 
ness, as  well  as  upon  his  ship. 

Ingram  v.   Lawson,  G  Bing.  N.  C.  212  ;  4  Jur.  151  ;  9  C.  &  P.  328  ; 

8  Scott,  471. 
Solomon,  v.    Lawson,  8  Q.  B.  823  ;  15  L.  J.  Q.  B.  233  ;  10  Jur.  796, 
and  other  cases  cited  ante,  pp.  30 — 32,  81. 


(174) 


CHAPTER  IV. 

[*  !34]  SCANDALUM     MAGXATUM. 

By  virtue  of  certain  ancient  statutes,  words  which  would  not 
be  actionable,  if  spoken  of  an  ordinary  subject,  are  actionable, 
if  spoken  of  a  peer  of  the  realm,  or  of  a  judge,  or  of  any  of  the 
great  officers  of  the  Crown,  even  without  proof  of  any  special 
damage. 

It  has  been  maintained  that  this  privilege  existed  at  the  common 
law,  independently  of  any  statute  ;  and  passages  are  generally  cited 
from  Reports  in  support  of  this  opinion.  But  in  the  passages 
relied  on,  Lord  Coke  is,  I  think,  referring  to  criminal,  and  not  to 
civil,  proceedings.  And  such  a  distinction  between  nobles  and 
commoners  appears  to  me  alien  to  the  spirit  of  our  common  law. 

The  following  are  the  statutes  referred  to  : — "  Forasmuch  as  there 
have  been  oftentimes  found  in  the  country  devisors  of  tales,  where- 
by discord  or  occasion  of  discord,  hath  many  times  arisen  between 
the  King  and  his  people  or  great  men  of  this  realm  ;  for'  the 
damage  that  hath  and  may  thereof  ensue  ;  it  is  commanded,  that 
from  henceforth  none  be  so  hardy  to  tell  or  publish  any  false  news 
or  tales,  whereby  discord,  or  occasion  of  discord  or  slander,  may 
grow  between  the  King  and  his  people,  or  the  great  men  of  the 
realm  ;  and  he  that  doth  so,  shall  be  taken  and  kept  in  prison, 
until  he  hath  brought  him  into  the  Court,  which  was  the  first 
author  of  the  tale."     (3  Edw.  I.     Stat.  Westminster  I.  c.  34.) 

"  Item,  of  devisors  of  false  news,  and  of  horrible  and  [*135]  false 
lyes,  of  prelates,  dukes,  earls,  barons  and  other  nobles  and  great  men 
of  the  realm,  and  also  of  the  chancellor,  treasurer,  clerk  of  the  privy 
seal,  steward  of  the  King's  house,  justices  of  the  one  bench  or  the  other 
and  of  other  great  officers  of  the  realm,  of  things  which  by  the  said 
prelates,  lords,  nobles  and  officers  aforesaid,  were  never  spoken, 
done,  or  thought,  in  great  slander  of  the  said  prelates,  lords,  nobles, 
and  officers,  whereby  debates  and  discords  might  arise  betwixt  the 
said  lords,  or  between  the  lords  and  the  commons,  which  God  forbid, 
and  whereof  great  peril  and  mischief  might  come  to  all  the  realm,  and 
quick  subversion  and  destruction  of  the  said  realm,  if  due  remedy 
be  not  provided  :  It  is  straitly  defended  upon  grievous  pain,  for  to 
eschew  the  said  damages  and  perils,  that  from  henceforth  none  be  so 
hardy  to  devise,  speak,  or  to  tell  any  false  news,  lyes,  or  such  other 
false  things,  of  prelates,  lords,  and  of  other  aforesaid,  whereof  discord 
or  any  slander  might  i"ise  within  the  same  realm  ;  and  he  that  doth  the 
same  shall  incur  and  have  the  pain  another  time  ordained  thereof 
by  the  Statute  of  Westminster  the  First,  which  will,  that  he  be 
taken  and  imprisoned  till  he  have  found  him  of  whom  the  word  was 
moved."     (2  Rich.  II.  St.  I.  c.  5.) 

(175) 


104  S<  ANDALUM    MAGNATUM. 

."  Item,  whereas  it  is  contained,  as  well  in  the  Statute  of  West- 
minster the  First,  as  in  the  statute  made  at  Gloucester,  the  second 
year  of  the  reign  of  our  lord  the  King  that  now  is,  that  none  be  so 
hardy  to  invent,  to  say,  or  to  tell  any  false  news,  lies,  or  such  other 
false  things,  of  the  prelates,  dukes,  earls,  barons  and  other  nobles  and 
great  men  of  the  realm,  and  also  of  the  chancellor,  treasurer,  clerk  of 
the  privy  seal,  the  steward  of  the  King's  house,  the  justice  of  the  one 
bench  or  of  the  other,  and  other  great  officers  of  the  realm,  and  he 
that  doth  so  shall  be  taken  and  imprisoned,  till  he  hath  found  him 
of  whom  the  speech  shall  be  moved  :  It  is  accorded  and  agreed  in 
this  Parliament,  that  when  any  such  is  taken  and  imprisoned,  and 
cannot  find  him  by  whom  the  speech  be  moved,  as  before  is  said, 
that  [*136]  he  be  punished  by  the  advice  of  the  counsel,  notwith- 
standing the  said  statutes."     (12  Rich.  II.  c.  11.) 

Although  by  these  statutes  no  civil  remedy  is  expressly  given,  yet 
the  violation  of  these  pi-ovisions  entitles  the  great  men  of  the  realm 
to  sue  for  damages,  on  the  well-known  principle  that  if  A.  does  an 
act  expressly  prohibited  by  statute,  whereby  B.  is  prejudiced,  A. 
must  compensate  B.  for  such  private  injury.  A.  will  also  be  liable 
to  imprisonment  for  contempt  on  the  information  of  the  Attorney- 
General. 

All  peers,  whether  of  Great  Britain  or  of  Scotland  (5  Anne,  c.  8, 
s.  23),  are  within  the  statute  ;  including  a  viscount,  though  such  a 
title  of  honour  was  unknown  when  the  statute  was  passed.  (  Vis- 
count Say  &  Seal  v.  Stephens,  Cro.  Car.  135  ;  Ley,  82.)  The  king 
himself  is  within  the  3  Edw,  I.  c.  34  (12  Rep.  133)  ;  but  not  with- 
in 2  Rich.  II.  St.  1,  c  5,  not  being  "a  great  man "  of  his, 
own  realm.  (Cromp.  Author.  19,  35.)  A  peeress  is  not  within 
either  statute.  (Cromp.  Author.  34.)  A  baron  of  the  Exchequer 
(and  now  any  judge  of  the  Supreme  Court  of  Judicature)  is  within 
the  statutes.  Of  course  the  rank  or  dignity  which  entitles  the 
plaintiff  to  sue  in  scandalum  magnatum  must  have  been  attained 
before  the  words  complained  of  were  published. 

Although  the  words  of  the  statute  are  "horrible  and  false  lies," 
yet  they  have  been  strained  to  cover  words  which  in  no  way  -affect 
the  life  or  dignity  of  the  peer,  but  which  are  merely  uncivil  ex- 
pressions, expressing  general  disesteem  for  his  lordship.  For  it  is 
alleged  that  such  expressions,  though  not  likely  to  result  in  general 
discord,  and  the  "quick  subversion  of  the  realm,"  yet  impugn  and 
vilify  the  honour  of  the  nobles,  and  tend  to  provoke  to  a  breach  of 
the  peace.  (But  seethe  remarks  of  Atkins,  J.,  in  2  Mod.  161 — 1G5. 
Lord  Towns/tend  v.  Dr.  Hughes.)  The  words  also  were  supposed 
to  echo  through  the  kingdom,  being  spoken  of  a  peer  of  the 
realm;  and  the  plaintiff  therefore  had  this  further  privilege,  that 
he  could  lay  the  venue  where  he  pleased,  and  was  not  bound,  like 
an  ordinary  plaintiff,  to  try  in  the  county  where  the  words  were 
spoken. 
1*137]  Illustrations. 

Words  complained  of  : — "  I  value  my  Lord  Marquess  of  Dorchester  no  more 

(176) 


SCANDALUM    MAGNATUM.  105 

than  I  value  the  dog  at  my  foot."  Held,  that  the  action  was  well  laid  in  scanda- 
lurn  magnatum,  the  plaintiff  being  a  marquess.  But  a  private  person  would 
have  had  no  action  for  such  words  without  proof  of  special  damage,  as  they 
merely  show  the  esteem  in  which  the  defendant  held  him. 

Proby  v.  Marquess  of  Dorchester  (in  error),  1  Levinz,  148. 

Lord  Falkland  v.  Phipps,  2  Comyns,  439  ;  1  Vin.  Abr.  549. 

But  the  civil  proceeding  under  these  statutes  is  not  quite  obso- 
lete. This  may  be,  as  alleged  in  Russell  on  Crimes  (5th  ed.  vol.  iii., 
p.  203,  n.),  because  the  nobility  prefer  "to  waive  their  privileges 
in  any  action  of  slander,  and  to  stand  upon  the  same  footing,  with 
respect  to  civil  remedies,  as  their  fellow  subjects."  Or  it  may  possi- 
bly be.  due  to  the  decision  in  Lord  Peterborough  v.  Williams,  2 
Shower,  500  (or  in  Butt's  ed.  p.  650),  that  in  sca/idulum  magnatum 
no  costs  are  to  be  given  to  the  plaintiff,  though  the  verdict  be  for 
him.  I  believe  no  such  action  has  been  brought  since  1710.  {The 
Duke  of  Richmond  v.    Costeloio,  11  Mod.  235. 


(177) 


[*138]  CHAPTER  V. 

SLANDER    OF    TITLE,    OR    WORDS    CONCERNING    THINGS. 

Words  cannot  he  defamatory  unless  they  directly  affect  some 
person  ;  either  in  his  individual  capacity,  or  in  his  office,  profession, 
or  trade.  Sometimes  no  doubt  an  attack  on  a  thing  may  be_  an 
indirect  attack  upon  an  individual  ;  and  may  therefore  be  action- 
able, as  defamatory  of  him.  Thus  where  the  defendant  said  of  the 
plaintiff,  "  He  is  a  cheat  ;  he  has  nothing  hut  rotten  goods  in  his 
shop  ;"  this  was  rightly  held  a  slander  on  the  plaintiff  in  the  way 
of  his  trade  (Barnet  v.  Wells  (1700),  12  Mod.  420)  ;  for  the  words 
clearly  imputed  that  the  plaintiff  was  aware  of  the  unsatisfactory 
condition  of  his  wares,  and  yet  continued  to  foist  them  on  the  pub- 
lic. So  to  charge  a  tradesman  with  wilfully  adulterating  the  goods 
he  sells  is  clearly  an  attack  on  him  as  well  as  on  his  goods,  and 
would  therefore  be  actionable  without  special  damage.  (Jesson  v. 
Haues  ,(1636),  Roll.  Abr.  63.  See  also  Ingram  v.  Lawson,  6  Bing. 
N.  (J.  212  ;  8  Scott,  478,  and  other  cases  cited  ante,  pp.   30—32. 

But  wholly  apart  from  these  cases  there  is  a  branch  of  the  law 
(generally  known  by  the  inappropriate  but  convenient  name — Slan- 
der of  Title)  which  permits  an  action  to  be  brought  against  any 
one  wdio  maliciously  decries  the  plaintiff's  goods  or  some  other  thing 
belonging  to  him,  and  thereby  produces  special  damage  to  the  plain- 
tiff. "This  is  obviously  no  part  of  the  law  of  defamation,  for  the 
plaintiff's  reputation  remains  uninjured  ;  it  is  really  an  action  [*139] 
on  the  case  for  maliciously  acting  in  such  a  way  as  to  inflict  loss 
upon  the  plaintiff.  All  the  preceding  rules  dispensing  with  proof 
of  malice  and  special  damage  are  therefore  wholly  inapplicable  to 
cases  of  this  kind.  Here,  as  in  all  other  actions  on  the  case,  there 
must  be  et  damnum  et  injuria.  The  injuria  consists  in  the  unlawful 
words  maliciously  spoken,  and  the  damnum  is  the  consequent 
money  loss  to  the  plaintiff. 

1.  Slander  of  Title  proper. 

Where  the  plaintiff  possesses  an  estate  or  interest  in  any  real  or 
personal  property,  an  action  lies  against  any  one  who  maliciously 
comes  forward  and  falsely  denies  or  impugns  the  plaintiff's  title 
thereto,  if  thereby  damage  follows  to  the  plaintiff  (Pater  v.  Baker, 
3  C.  B.  869  ;  16  L.  J.  C.  P.  124  ;  11  Jur.  370.) 

The  statement  must  be  false  ;  if  there  be  such  a  flaw  in  the 
title  as  the  defendant  asserted,  no  action  lies.  And  it  is  for  the 
plaintiff  to  prove  it  false,  not  for  the  defendant  to  prove  it  true. 
(Burnett  v.  Tak,  45  L.  T.  743).  And  the  statement  must  be  mali- 
cious ;  if  it  be  made  in  the    bond  fide  assertion  of  defendant's  own 

(178) 


SLANDER    OF    TITLE.  107 

right,  real  or  supposed,  to  the  property,  no  action  lies.  But  when- 
ever a  man  unnecessarily  intermeddles  with  the  affairs  of  others  with 
which  he  is  wholly  unconcerned,  such  officious  interference  will  be 
deemed  malicious  and  he  will  be  liable,  if  damage  follow.  Lastly, 
special  damage  must  be  proved,  and  shown  to  have  arisen  from 
defendant's  words.  And  for  this  it  is  generally  necessary  for  the 
plaintiff  to  prove  that  he  was  in  the  act  of  selling  his  property  either 
by  public  auction  or  private  treaty,  and  that  the  defendant  by  his 
words  prevented  an  intending  purchaser  from  binding  or  completing. 
( Tasburgh  v.  -Dag,  Cro.  Jac.  484  ;  Luwe  v.  Harewood,  Sir  W.  Jones, 
L96  ;  Cro.  Car.  140.)  So  proof  that  plaintiff  wished  to  let  his  lands 
and  that  the  defendant  prevented  [*140]  an  intending  tenant  from 
taking  a  lease  will  be  sufficient.  But  a  mere  apprehension  that  plain- 
tiff's title  might  be  drawn  in  question,  or  that  the  neighbours  placed  a 
lower  value  on  plaintiff's  lands  in  their  own  minds  in  consequence, 
the  same  not  being  offered  for  sale,  will  not  be  sufficient  evidence 
of  damage.  "  This  action  lieth  not  but  by  reasoii  of  the  prejudice 
in  the  sale."  (Per  Fenner,  J.,  in  Bold  v.  Bacon,  Cro.  Eliz.  346.) 
The  special  damage  must  always  be  such  as  naturally  or  reasonably 
arises  from  the  use  of  the  words.  (Iladdon  v.  Lott,  15  C.  13.  411  ; 
24  L.  J.  C.  P.  49;  see  post,  c.  X.  p.  325.  But  see  Paw  leg  v.  Scratton, 
3  Times  L.  R.  146.) 

It  makes  no  difference  whether  the  defendant's  words  be  spoken 
or  written  or  printed  ;  save  as  affecting  the  damages,  which  should 
be  larger  where  the  publication  is  more  permanent  or  extensive,  as 
by  advertisement.  \Medachg  v.  JSoper  and  another,  3  Bing.  N.  C. 
371  ;  3  Scott,  723.) 

The  property  may  be  either  real  or  personal  ;  and  the  plaintiff's 
interest  therein  may  be  either  in  possession  or  reversion.  It  need 
not  be  even  a  vested  interest,  so  long  as  it  is  anything  that  is  sale- 
able or  that  has  a  market  value. 

Zllvstrations. 

Lands  were  settled  on  D.  in  tail,  remainder  to  the  plaintiff  in  fee.  D.  being 
an  old  man  and  childless,  plaintiff  was  about  to  sell  his  remainder  to  A.,  when 
the  defendant  interfered  and  asserted  that  D.  had  issue.  A.  consequently 
refused  to  buy.     Held,  that  the  action  lay. 

Blixs  v.  Stafford,  Owen,  37  ;  Moore,  188  ;  Jenk.  247. 

The  plaintiff's  father  being  tenant-in-tail  of  certain  lands,  which  he  was  about 
to  sell,  the  purchaser  offered  the  plaintiff  a  sum  of  money  to  join  in  the  assur- 
ance so  as  to  estop  him  from  attempting  to  set  aside  the  deed,  should  he  ever 
succeed  to  the  estate  tail  ;  but  the  defendant  told  the  purchaser  that  the  plaintiff 
was  a  bastard,  wherefore  he  refused  to  give  the  plaintiff  anything  for  his  signa- 
ture. Held,  that  the  plaintiff  had  a  cause  of  action,  though  he  was  the  youngest 
son  of  his  father,  and  his  chance  of  succeeding  was  therefore  remote. 
Vauglian  v.  Ellis,  Cro.  Jac.  213. 

Plaintiff  succeeded  to  certain  lands  as  heir-at-law  ;  the  defendant  asserted  that 
plaintiff  was  a  bastard  ;  plaintiff  was  in  consequence  put  to  great  expense  to 
defend  his  title. 

Elborow  v.  Allen,  Cro.  Jac.  642. 

To  call  a  man  a  bastard  while  his  father  or  other  ancestor  is  alive  may  be 
actionable  on  general  principles,  if  special  damage  ensue,  such  as  the  loss  of  a 
[*  141  ]  marriage,  or  if  he  be  disinherited  in  consequence  of  defendant's  words 
(a  very  improbable  result,  as  his  father  must  know  better  than  the  defendant 
whether  the  plaintiff  is  a  bastard  or  not)  ;  but  it  is  not  the   subject   of   an  action 

U79) 


108  SLAXDKli    OF    TITLE. 

for  slander  of  title  ;  for,  even  though  heir-apparent,  plaintiff  has  no  title  ;  but 
only  a  mere  expectancy. 

Nelson  v.  Staff  (1618),  Cro.  Jae.  422. 

Humphrys  v.  Stanfeild,  vel  Stridfield  (1638),  Cro.  Car.  469;  Godb. 
451  ;  Sir  Win.  .Jones,  388;  1  Roll.  Ahr.  38. 

Turner  v.  Stt  rling  (1671),  2  Vent.  26  ;  Anon.,  1  Roll.  Abr  37. 

Banister  v.  Banister  (1683),  4  Rep.  17. 
The  defendant  falsely  represented  to  the  bailiff  of  a  manor  thai  a  sheep  of  the 
plaintiff  was  an  estray,  in  consequence  of  which  it  was  wrongfully  seized.    Held, 
that  an  action  on  the  ease  lay  against  him. 

Newman  v.  Zachary,  Aleyn,  3. 
The  plaintiff  was  desirous  to  sell  his  lands  to  any  one  who  would  buy  them, 
when  the  defendant  said  that  the  plaintiff  had  mortgaged  all  his  lands  for  100/., 
and  that  he  had  no  power  to  sell  or  let  the  same  No  special  damage  being 
shown,  judgment  was  staved.  It  was  not  proved  that  any  one  intending  to  buy 
plaintiff's  lands  heard  defendant  speak  the  words. 

Manning  v.  Avery  (1674),  3  Keb.  153;  1  Vin.  Abr.  553. 
The  plaintiff  was  possessed  of  tithes  which  he  desired  to  sell  ;  the  defendant 
falsely  and  maliciously  said,  "His  right  and  title  thereunto  is  nought,  audi 
have  a  better  title  than  he."  As  special  damage  it  wasalleged  that  the  plaintiff 
"  was  likely  to  sell,  and  was  injured  by  the  words  ;  and  that  by  reason  of  the 
defendant's  speaking  the  words," the  plaintiff  could  not  recover  his  tithes."  Held, 
insufficient. 

Cane  v.  Oolding  (1649),  Style,  169,  176. 

Law  v.  Harwood  (1629),  Sir  Win.  Jones,  196;  Palm.  529;  Cro.  Car. 
140. 
The  plaintiff  was  the  assignee  of  a  beneficial  lease,  which  be  expected  would 
realize  100/.  But  the  defendant,  the  superior  landlord,  came  to  the  sale,  and 
stated  publicly,  "The  whole  of  the  covenants  of  this  lease  are  broken,  and  I 
have  served  notice  of  ejectment  ;  the  premises  will  cost  £70  to  put  them  in 
repair."  In  consequence  of  this  statement  the  property  fetched  only  35  guineas. 
Rolfe,  B.,  left  to  the  jury  only  one  question — Was  the  defendant's  statement 
true  or  false  ?  and  they  found  a  verdict  for  the  plaintiff  ;  damages,  £40.  But 
the  Court  of  Exchequer  granted  a  new  trial  on  the  ground  that  two  other  ques- 
tions ought  to  have  beeii  left  to  the  jury  as  well : — Was  the  statement  or  any 
part  of  "it  made  maliciously  ?  and.  Did  the  special  damage  arise  from  such 
malicious  statement  or  from  such  part  of  it  as  was  malicious  ? 

Brook  v.  Bawl,  4  Exch.  521  ;  19  L.  J.  Ex.  114. 

And  see  Smith  v.  Spooner,  3  Taunt.  246. 

Milman  v.  Pratt,  2  B.  &  C.  486  ;  3  D.  &  R.  728. 

Watson  v.  Reynolds,  Moo.  &  Mai.  1. 
An  advertisement  was  sent  to  the  Wolverhampton  Ghronicleva  the  ordinary 
course  of  business  and  published  once  on  January  6th,  1868.  It  was  as  fol- 
lows : — "Important  notice.  Horsehill  Estate.  The  public  are  respectfully 
requested  not  to  buy  any  property  formerly  belonging  to  A.,  B.,  and  C,  with- 
out ascertaining  that  the  title  deeds  of  the  same  are  correct  ;  as  the  heirs  are  not 
dead  nor  abroad,  hut  are  still  alive."  This  estate  was  at  that  moment  adver- 
ts 142]  tised  for  sale  in  building  lots;  but  this  advertisement  revived  all  pre- 
vious doubts  about  plaintiff's  title,  and  rendered  the  estate  practically  unsaleable. 
On  January  13th  plaintiff  wrote  and  complained  of  this  advertisement,  and 
asked  for  the  name  and  address  of  the  person  who  sent  it  to  the  paper.  This 
the  proprietor  of  the  paper  at  once  furnished  ;  but  on  January  30th  he  was 
served  with  a  writ.  On  February  10th  he  inserted  an  apology.  But  the  jury, 
under  the  direction  of  Keating,  J.,  found  for  the  plaintiff. 

Bavenhill  v.  TTpcott,  33  J.  P.  299. 
The  plaintiff  held  160  shares  in  a  silver  mine  in  Cornwall,  which  he  said  were 
worth  £100,000.  Tollervey  and  Hayward  each  filed  a  bill  in  Chancery  against 
the  plaintiff  and  others  claiming  certain  shares  in  the  mine,  and  praying  for  an 
account  and  an  injunction,  and  for  the  appointment  of  a  receiver.  To  these 
bills  plaintiff  demurred.  Before  the  demurrers  came  on  for  hearing,  a  para- 
graph appeared  in  the  defendants'  newspaper  to  the  effect  that  the  demurrers 
had  been  overruled,  that  an  injunction  had  been  granted,  that  a  receiver  had 

(180) 


MALICE.  109 

been  duly  appointed,  and  had  actually  arrived  at  the  mine  ;  all  of  which  was 
quite  untrue.  A  verdict  having  been  obtained  for  the  plaintiff,  damages  £5, 
the  Court  of  Common  Pleas  arrested  judgment  on  the  ground  that  there  was 
no  sufficient  allegation  of  special  damage,  and  this,  although  the  declaration 
contained  averments  to  the  effect  that  "the  plaintiff  is  injured  in  his  rights  ; 
and  the  shares  so  possessed  by  him,  and  in  which  he  is  interested,  have  been 
and  are  much  depreciated  and  lessened  in  value  ;  and  divers  persons  have 
believed  and  do  believe  that  he  has  little  or  no  right  to  the  shares,  and  that  the 
mine  cannot  be  lawfully  worked  or  used  for  his  benefit ;  and  that  he  hath  been 
hindered  and  prevented  from  selling  or  disposing  of  his  said  shares  in  the  said 
mine,  and  from  working  and  using  the  same  in  so  ample  and  beneficial  a 
manner  as  he  otherwise  would  have  done." 

MalacKy  v.  Soper  and  another,  3  Bins.  K  C.  871  ;  3  Scott,  723  ; 
2  Hodges,  217. 

And  see  Hart  and  another,  v.  Wall,  2  C.  P.  D.  146  ;  46  L.  J.  C.  P. 
227  ;  25  W.  R.  373,  ante,  p.  82. 

It  is  not  actionable  for  any  man  to  assert  his  own  rights  at  any 
time.  And  even  where  the  defendant  fails  to  prove  such  right  on 
investigation,  still  if  at  the  time  he  spoke  he  bond  fide  supposed 
such  right  to  exist,  no  action  lies.  (  Carr  v.  Duckett,  5  II.  &  N. 
783  ;  29  L.  J.  Ex.  468.)  Hence,  whenever  a  man  claims  a  right 
or  title  in  himself,  in  possession  or  in  remainder,  it  is  not 
enough  for  the  plaintiff  to  prove  that  he  had  no  such  right  ; 
he  must  also  give  evidence  of  express  malice  (Smith  v.  Spooner, 
3  Taunt.  246)  ;  that  is,  he  must  also  attempt  to  show  that 
the  defendant  could  not  honestly  have  believed  in  the  existence 
of  the  right  he  claimed,  or  at  least  that  lie  had  no  reason- 
[*143]  able  or  probable  cause  for  so  believing.  If  there  appear  no 
reasonable  or  probable  cause  for  his  claim  of  title,  still  the  jury  are 
not  bound  to  find  malice  ;  the  defendant  may  have  acted  stupidly, 
yet  from  an  innocent  motive.  {Pitt  v.  Donovan,  1  M.  &  S.  64s  ; 
Steward  v.  Young,  L.  R.  5  C.  P.  122  ;  39  L.  J.  C.  P.  85  ;  18  W. 
R.  492  ;  22  L.  f .  168  ;  Clark  v.  Moh/neux,  3  Q.  B.  D.  237  ;  47 
L.  J.  Q.  B.  230  ;  26  W.  R.  104  ;  37  L.  T.  094.)  But  in  all  cases 
where  it  appears  that  the  defendant  at  the  time  he  spoke  knew  that 
what  he  said  was  false,  the  jury  should  certainly  find  malice  ;  lies 
which  injure  another  cannot  be  told  bonajide.  (  Waterer  v.  Freeman, 
Hob.  266.) 

The  law  is  the  same  where  the  defendant  is  an  agent  or  attorney, 
and  claims  for  his  principal  or  client  a  title  which  he  honestly 
believes  him  to  possess.  (Ilargrave  v.  Le  Breton,  4  Burr.  2422  ; 
Steward  v.  Young,  L.  R  4  C.  P.  122  ;  39  L.  J.  C.  P.  85  ;  18  W.  R. 
,492  ;  22  L.  T.  186.)  So  where  a  man  bond  fide  asserts  a  title  in  his 
father  or  other  near  relative  to  whom  he  or  his  wrife  is  heir  apparent. 
(Pitt  v.  Donovan,  1  M.  &  S.  639  ;  Gutsole  v.  Mathers,  1  M.  &  W. 
499  ;  5  Dowl.  69  ;  2  Gale,  64  ;  1  Tyrw.  &  Gr.  694.)  But  where 
the  defendant  makes  no  claim  at  all  for  himself  or  any  connection 
of  his,  but  asserts  a  title  in  some  one  who  is  a  stranger  to  him,  here 
he  clearly  is  meddling  in  a  matter  which  does  not  concern  him  ; 
and  such  officious  and  unnecessary  interference  will  be  deemed 
malicious.  (Pennyman  v.  RabanJcs,  Cro.  Eliz.  427  ;  1  Vin.  Abr. 
551  ;  Mildmay  et  vx.  v.  Standish,  1  Rep.  177  b  ;  Cro.  Eliz.  34  ; 
Moore,  144  ;  Jenkins's  Centuries,  247.) 

(181) 


110  SLANDER    OF   TITLE. 

"  If  some;  portions  of  the  statement  which  a  person  makes  are 
bond Jlde,  but  others  are  mala  fide,  and  occasion  injury  to  another, 
the  injured  party  cannot  recover  damages  unless  he  can  distinctly 
trace  the  damage  as  resulting  from  that  part  which  is  made  mala 
fide."  (Per  Parke,  15.,  in  Brook  v.  Bawl,  4  Ex.  524.)  So  if  part  he 
true  and  part  false.      (JO.  523.) 

Illustrations. 

[*144]  Plaintiff  had  purchased  the  manor  and  castle  of  H.  in  fee  from  Lord 
Audley,  and  was  about  to  demise  them  to  Ralph  Egerton  tor  a  term  of  twenty- 
two  years,  when  the  defendant,  a  widow,  said,  "  I  have  a  lease  of  the  castle 
and  manor  of  II.  for  ninety  years  ;  "  and  she  showed  him  what  purported  to  be 
a  lease  from  a  former  Lord  Audley  to  her  husband  for  a  term  of  ninety  years. 
This  lease  was  a  forgery  ;  and  the  defendant  knew  it.  Held,  that  an  action  lay 
for  slander  of  title  ;  "though  the  defendant  had  claimed  a  right  to  the  property 
herself.  It  would  have  been  otherwise  had  she  not  known  thai  the  lease  was 
a  forgery. 

Sir.  O.  Gerard  v.  Dickenson,  4  Rep.  18  ;  Cro.  Eliz.  197. 

And  see  Fitzh.  Nat.  Brev.  116  (B.  &  D.) 

Lor,  it  v.    Weller,  1  Roll.  R.  409. 
If  the  defendant  asserts  that  plaintiff  is  a  bastard,   and  that  he  himself  is  the 
next  heir,  no  action  lies. 

Banister  v.  Banister  (1683),  4  Rep.  17. 

Cane  v.  Qolding  (1649),  Styles,  169,  176. 
The  plaintiff  put  up  for  sale  by  public  auction  eight  unfinished  houses  in 
Agar  Town.  The  defendant,  a  surveyor  of  roads  appointed  under  the  7&  8 
Yict.  c.  84,  had  previously  insisted  that  these  houses  were  not  being  built  by 
the  plaintiff  in  conformity  with  the  Act.  He  now  attended  the  sale  and  stated 
publicly,  "  My  object  in  attending  the  sale  is  to  inform  purchasers,  if  there  are 
any  present,  that  I  shall  not  allow  the  houses  to  be  finished  until  the  roads  are 
made  uood.  I  have  no  power  to  compel  the  purchasers  to  complete  the  roads  ; 
but  I  have  power  to  prevent  them  from  Completing  the  houses  until  the  roads 
are  made  c;ood."  In  consequence  only  two  of  the  carcasses  were  sold  ;  and  they 
realized  only  £35  each,  instead  of  £65.  The  jury  found  a  verdict  for  the  plaintiff 
for  £18  12s.  But  the  Court  of  Common  Pleas  held  that  there  was  no  evidence 
of  malice  to  go  to  the  jury.  For  malice  is  not  to  be  inferred  from  the  circum- 
stance of  the  defendant  having  acted  upon  an  incorrect  view  of  his  duty, 
founded  upon  an  erroneous  construction  of  the  statute. 

Pater  v.  Baker,  3  C.  B.  831  ;  16  L.  J.  C.  P.  121  ;  11  Jur.  370. 

Ha  re/rare  v.  Le  Breton,  4  Burr.  2422. 
Plaintiff  held'  lands  on  lease  from  Home,  which  he  put  up  for  sale.  Defend- 
dant,  who  was  I  Ionic's  attorney,  attended  and  said  publicly  before  the  first  lot 
was  put  up,  "  There  is  a  suit  depending  in  the  Court  of  Chancery  in  respect 
to  this  property;  encroachments  have  been  made;  proceedings  will  be  taken 
against  the  purchaser  ;  there  is  no  power  to  sell  the  premises  ;  a  good  title 
cannot  be  made,"  &c.  Littledale,  J.,  directed  the  jury  that  defendant  was  not 
liable,  if  he  bond  fide,  though  without  authority,  raised  such  objections  only  as 
Home,  if  present,  might  lawfully  have  raised.  Verdict  for  the  plaintiff. 
Damages,  one  farthing. 

Watson  v.  Reynolds,  Moo.  &Mal.  1. 

Pauley  v.  Scratton,  3  Times  L.  R.  146. 
The  plaintiff  was  the  widow  and  administratrix  of  her  deceased  husband,  and 
advertised  a  sale  of  some  of  his  property.  Defendant,  an  old  friend  of  the 
husband,  thereupon  put  an  advertisement  in  the  papers  offering  a  reward  for 
the  production  of  the  will  of  the  deceased.  The  defendant  subsequently  called 
on  the  solicitor  of  the  deceased,  and  was  assured  by  him  there  was  no  will  ;  but, 
in  spite  of  this,  the  defendant  attended  at  the  sate  and  make  state- 
ments which  [*145]  effectually  prevented  any  person  present  from  bidding. 
After  waiting  twelve  njonths,  the  plaintiff  again  put  the  same  property  up  for 
sale,  and  defendant  again  stopped  the  auction.     Cockburn,  C.  J.,  left  it  to  the 

(182j    ■ 


SLANDER    OF    TITLE.  1  1 1 

jury  to  say  whether,  after  the  interview  with  the  plaintiff's  solicitor,  defendant 
could  still*  possess  an  honest  and  reasonable  belief  that  the  deceased  had  left  a 
will.  The  jury  found  that  he  had  not  that  belief .  Verdict  for  the  plaintiff . 
Damages,  £54  7s. 

Atkins  v.  Pen-in,  3  F.  &  F.  179. 
A.  died  possessed  of  furniture  in  a  beer-shop.  His  widow,  without  taking 
out  administration,  continued  in  possession  of  the  beer-shop  for  three  or  four 
years,  and  then  died,  having  whilst  so  in  possession  conveyed  all  the  furniture 
by  bill  of  sale  to  her  landlords  by  way  of  security  for  a  debt  she  had  contracted 
with  them.  After  the  widow's  death,  the  plaintiff  took  out  letters  of  adminis- 
tration to  die  estate  of  A.,  and  informed  the  defendant,  the  landlord's  agent, 
that  the  bill  of  sale  was  invalid,  as  the  widow  had  no  title  to  the  furniture. 
Subsequently  the  plaintiff  was  about  to  sell  the  furniture  by  auction,  when  the 
defendant  interposed  to  forbid  the  sale,  and  said  that  he  claimed  the  goods  for 
his  principals  under  a  bill  of  sale.  On  proof  of  these  facts,  in  an  action  for 
slander  of  title,  the  plaintiff  was  nonsuited.  Held,  that  the  mere  fact  of  the 
defendant's  having  been  told  before  the  sale  that  the  bill  of  sale  was  invalid, 
wis  no  evidence  of  malice  to  be  left  to  the  jury,  and  that  the  plaintiff  was 
therefore  properly  nonsuited. 

Steward  v.  Young,  L.  R.  5  C.  P.  122  ;  39  L.  J.  C.   P.  85  ;  18  W.  R. 
41)2  ;  22  L.  T.  168. 

And  see  Blackham  v.  Pagh,  2  C.  B.  611  ;  15  L.  J.  C.  P.  290. 
The  defendant  wrongfully  and  maliciously  caused  certain  persons  who  had 
agr<  id  to  sell  goods  to  the  plaintiff  to  refuse  to  deliver  them,  by  asserting  that 
he  had  a  lien  upon  them,  and  ordering  those  persons  to  retain  the  goods  until 
further  orders  from  him,  he  well  knowing  at  the  time  that  he  had  no  lien.  Held, 
that  the  action  was  maintainable,  though  the  persons  who  had  the  goods  wrere 
under  no  legal  obligation  to  obey  the  orders  of  the  defendant,  and  their  refusal 
was  their  own  spontaneous  act. 

Green  v.  Button,  2  C.  M.  &  R.  707. 

Barley  v.  Walford,  9  Q.  B.  197  ;  15  L.  J.  Q.  B.  369 ;  10  Jur.  917. 
The  lessee  of  an  hotel  agreed  to  sell  her  lease  and  certain  valuable  tenant's 
fixtures  to  Turner.  Defendant,  the  assignee  of  the  lessor,  thereupon  gave 
notice  to  Turner  that  he  claimed  most  of  the  fixtures  as  landlord's  fixtures, 
ami  that  if  Turner  bought  them,  he  would  have  to  give  them  up  at  the  end  of 
the  term  or  pay  defendant  for  them.  Held,  that  no  action  lay,  for  there  was  no 
evidence  of  malice,  although  defendant  had  no  present  property  in  the  goods. 

Baker  and  others  v.  Piper,  2  Times  L.  R.  733. 

Patents,   d-c. 

The  defendant  had  a  subsisting  patent  for  the  manufacture  of  spooling 
machines  ;  so  had  the  plaintiff.  The  defendant  wrote  to  certain  manufacturers, 
customers  of  the  plaintiff,  wTarning  them  against  using  the  plaintiff's  machine, 
on  the  ground  that  it  was  an  infringement  of  the  defendant's  patent.  Held, 
that  "  the  action  could  not  lie  unless  the  plaintiff  affirmatively  proved  that  the 
defendant's  claim  was  not  a  bond  fide  claim  in  support  of  aright  which,  with 
or  without  cause,  he  fancied  he  had,  but  a  maid  fide  and  malicious  attempt  to 
injure  the  plaintiff  by  asserting  a  claim  of  right  against  his  own  knowledge 
[*  146]  that  it  was  without  any  foundation."  Evidence  to  show  that  the 
defendant's  patent,  though  subsisting,  was  void  for  want  of  novelty,  was  not 
admitted,  as  being  irrelevant  in  this  action. 

Wren  v.  Weild,   L.  R.  4  Q.  B.  730,  737  ;  10  B.  &  S.  51  ;  38  L.   J. 

Q.  B.  88,  327  ;  20  L.  T.  277. 
And  see  Dieks  v.  Brooks,  15  Ch.  D.  22  ;  49  L.  J.  Ch.  812  ;  29  W. 

R.  87;  40  L.  T.  710;  43  L.  T.  71. 
Hammersmith  Skating  Rink  Co.  v.  Dublin  Skating  Pink  Co.,  10  Ir. 
R.  Eq.  235. 
But  a  patentee  is  not  entitled  to  publish  statements  that  he  intends  to  insti- 
tute legal  proceedings  in  order    to    deter    persons  from    purchasing  alleged 
infringements  of  his  patent,  unless  he  does  honestly  intend  to  follow  up  such 
threats  by  really  taking  such  proceedings. 

(183) 


1 1  2  SLANDER    OF   TITLE. 

Rollins  v.  Jlinks,  L.    R.  13  Eq.  355  ;  41  L.  J.  Ch.  358  ;  20  W.  R. 

287  ;  26  L.  T.  56. 
Axmarin  v.  /.'/«</,  L.    R.  13  Eq.  SCO  ;  43  L.  J.  Ch.  G55;  £2  W.  R. 

789. 
I!^/.sv/«  v.  Trask,  6  Ohio,  531. 
The  holder  of  a  patent,  the  validity  of  which  is  not  impeached,  who  issues 
notices  to  the  trade,  alleging  that  certain  articles  are  infringements  of  his 
patent,  and  threatening  legal  proceedings  against  those  who  purchase  them, 
is  not  liable  to  an  action  for  damages  by  the  vendor  of  those  articles  for  the 
injury  done  to  the  vendor's  trade  thereby,  provided  such  notices  are  issued 
bond  fide  in.  the  helief  that  the  articles  complained  of  are  infringements  of  the 
patent.  Nor  is  he  liable  to  be  restrained  by  injunction  from  continuing  to 
issue  them  until  it  is  proved  that  they  are  untrue,  so  that  his  further  issuing 
them  would  not  be  bond  fide. 

Halsey  v.   Brotherhood  (C.   A.),   19  Ch.  1).  386  ;    51  L.  J.  Ch.  233 ; 

30  W  R  279  ;  45  L.  T.  640;  affirming  the  decision  of  Jessel,  M. 

R.,  15  Ch.  D.  514  ;  49  L.  J.  Ch.  786  ;  29  W.  R.  9  ;  43  L.  T.  366. 

To  restrain  the  defendant  from  issuing  circulars,  &c. ,  stating  the  wrongful 

user  by  the  plaintiff  upon  his  manufactured  articles  of  labels  claimed  .by  the 

defendant,  and  from  threatening  the  plaintiff's  customers  with  legal  proceedings 

for  selling  articles  bearing  those  labels,  the  plaintiff  must  satisfy  the  Court  that 

the  statements  complained  of  are  untrue. 

Anderson  v.  LieMrfs  Extract  of  Meat  Co.,  45  L.  T.  757. 
And  see  Fyfe  v.  Gray,  73  L.  T.  (Newspaper)  309. 
Where  defendant  has  issued  notices  to  plaintiff's  customers  asserting  that 
plaintiff  in  selling  certain  goods  is  infringing  defendant's  patent  rights,  it  is  for 
the  plaintiff  to  prove  that  the  defendant's  statements  are  false,  and  if  no  maid 
fides  is  proved,  so  that  no  damages  could  be  recovered,  the  Court  will  not  grant 
an  iniunction.  If  in  a  judicial  proceeding  the  statements  are  proved  to  be 
false  in  fact,  an  injunction  will  be  granted  against  continuing  them,  as  that 
would  be  acting  maid  fide. 

Burnett  v.  'Tak,  45  L.  T.  743. 
In  fact  a  very  strong  prima  facie  case  must  be  shown  by  the  plaintiff  for  the 
Court  to  restrain  the  bond  fldeissue  of  circulars,  warning  persons  that  if  they 
buy  of  the  plaintiff  they  will  infringe  the  defendant's  patent  and  be  liable    to 
proceedings. 

Societe  Anonyme  dr.*  Manufactures  de  Glacesv.  Tilghman's  Patent 
Sand  Blast    Co.  (C.  A.).  25  Ch.  D.  1  ;  53  L.  J.  Ch.  1 ;  32  W.  R. 
71  ;  49  L.  T   451. 
[*147]  The  plaintiffs  were  the  makers  of  "  Rainbow  Water  Raisers  or  Elevat- 
ors," and  they  commenced  an  action  for  an  injunction  to  restrain  the  defend- 
ant's from  issuing  a  circular  cautioning  the  public  against  the  use  of  such  elevat- 
ors as  being  direct  infringements  of  certain  patents  of  the  defendants'.  _  The 
plaintiffs  subsequently  gave  notice  of  a  motion  to  restrain  the  issue  of  this  cir- 
cular until  the  trial  of  the  action.     The  defendants  then  commenced  a  cross 
action,  claiming  an  injunction  to  restrain  the  plaintiffs  from  infringing  their 
patents.     Held,  by  Kay,  J.,  that  as  there  was  no  evidence  of  mala  fides  on  the 
part  of  the  defendants,  they  ought  not  to  be  restrained  from  issuing  the  circu- 
lar until  their  action   had  been  "disposed  of,  but  that  they  must  undertake  to 
prosecute  their  action  without  delay. 

Household  ami  another  v    Fairburn  and  another,  51  L.  T.  498. 

And  now  see  46  and  47  Vict.  c.  57,  s.  32. 

Barney  v.  United  Telephone  Co.,  28  Ch.  D.  394  ;  33  W.  R.  576  ;  52 

L.  T.  573. 
Driffirhl  Cake  Co.  v.   Waterloo  Cake  Co.,  31  Ch.   D.  638;  55  L.   J. 

Ch.  B91  ;  34  W.  R   360  ;  54  L.  T.  210. 
Walker  v.  Clarke,  56  L.  T.  Ill  ;  3  Times  L.  R.  297. 

II.   Slander  of  Goods  manufactured  or  sold  by  another. 

"  An   untrue   statement,   disparaging  a  man's  goods,   published 
without  lawful  occasion,  and  causing  him  special  damage,  is  action- 

U84) 


SLANDER    OF   GOODS.  113 

able."  This  is  laid  down  as  a  general  principle  by  Bramwell,  B., 
in  Western  Counties  Manure  Co.  v.  Lawes  Chemical  Manure  Cb., 
L.  R.  9  Ex.  218,  222  ;  43  L.  J.  Ex.  171  ;  23  W.  R.  5  ;  and  it 
applies  although  no  imputation  is  cast  on  the  plaintiff's  private  or 
professional  character.  Nor,  in  the  opinion  of  the  same  learned 
judge,  is  it  necessary  to  prove  actual  malice  ;  it  is  sufficient  if  it 
be  made  "  without  reasonable  cause." 

At  the  same  time  it  is  not  actionable  for  a  man  to  commend  his 
own  goods,  or  to  advertise  that  he  can  make  as  good  articles  as  any 
other  person  in  the  trade.  (Harman  v.  Delaney,  2  Str.  898  ;  1 
Barnard.  289  ;  Fitz.  121.)  Competition  between  rival  traders  is 
allowed  to  any  extent,  so  long  as  only  lawful  means  are  resorted 
to.  (Padse>/Coal  Gas  Co.  v.  Corporation  of  Bradford,  L.  R.  15 
Eq.  167  ;  42  L.  J.  Ch.  293  ;  21  W.  R.  286  ;  28  L.  T.  11  ;  Mogul 
Steamship  Co.  v.  M'Gregor,  Gow  <b  Co.,  15  Q.  B.  D.  476;  54  L. 
J.  Q.  B.  540  ;  53  L.  T.  268  ;  49  J.  P.  646.)  But  force  and  vio- 
lence must  not  be  used  (Young  v.  Jlickens,  [*148]  6  Q.  B.  606), 
nor  threats  [Tarleton  and  others  v.  McGaidey,  Peake,  204,  270), 
nor  imputations  of  fraud  or  dishonesty. 

In  Evans  v.  Harlow  (1844),  5  Q.  B.  624  ;  13  L.  J.  Q.  B.  120  ; 
Dav.  &  M.  507,  which  appears  to  be  the  earliest  case  of  this  kind, 
no  special  damage  was  alleged  ;  and  the  only  point  decided  was 
that  the  words  were  not  a  libel  on  the  plaintiff  in  the  way  of  his 
trade,  and  that  therefore  no  action  lay.  The  court  did  not  express- 
ly decide  that  had  special  damage  been  alleged,  the  declaration 
would  have  been  good,  though  Patteson,  J.,  was  clearly  of  that 
opinion,  as  appears  from  his  remarks  on  p.  633.  These  remarks 
were  cited  to  the  Court  in  the  next  case  of  the  kind,  Young  v. 
Macrae,  3  B.  &  S.  264  ;  32  L.  J.  Q.  B.  6  ;  11  W.  R.  63  ;  9  Jur.  K 
S.  539  ;  7  L.  T.  354.  But  there  the  libel  did  not  impute  that  the 
plaintiff's  oil  was  bad  in  itself,  but  merely  alleged  that  it  was  infe- 
rior to  that  of  the  defendant  ;  and,  again,  it  was  held  that  no 
action  lay.  Blackburn,  J.,  asks  (3  B.  &  S.  269)  :  "  Is  there  any 
case  where  an  action  has  been  maintained  for  slander,  written  or 
verbal,  of  goods,  unless  where  the  slander  is  of  the  title  to  them, 
and  special  damage  has  resulted  ? "  But  the  dicta  of  the  other 
judges  fully  bear  out  the  head-note  :  "  Semble,  that  if  a  person 
falsely  and  "maliciously  disparages  an  article  which  another  manu- 
factures or  vends,  and  special  damage  results  therefrom,  an  action 
will  lie,  although  in  so  doing  no  imputation  was  cast  on  the  per- 
sonal or  professional  character  of  the  manufactm-er  or  vendor." 
And  this  semble  may  now,  I  think,  be  considered  as  settled  law 
since  the  decision  in  Western  Counties  Manure  Co.  v.  Lawes  Chem- 
ical Manure  Co.,  supra. 

It  is  unfortunate  that  in  the  report  of  Young  v.  Macrae,  in  theLaw 
Journal  (32  Q.  B.  p.  8),  Cockburn,  C.  J.,  is  represented  as  stating  : 
"  I  am  very  far  from  saying  that  if  a  trader  maliciously,  and  falsely 
to  his  oicn  knowledge,  publishes  matter  disparaging  an  article  manu- 
factured, or  sold  by  another,  even  if  he  makes  no  reflection  upon  the 
character,  trade,  or  profession  of  that  other,  and  if  special  damage 
8  Lib.  &  Slan.  (185) 


114  SLANDER    OF   TITLE; 

followed,  that  there  would  not  be  an  actionable  libel  ;  for  a  most 
grievous  wrong  might  be  done  in  that  way,  and  the  person  injured 
ought  to  have  a  remedy  by  an  action."  The  words  "  falsely  to  his 
own  knowledge,"  seem  to  imply  that  fraud  or  misrepresentation  is 
essential  to  the  cause  of  action  ;  and  it  is  on  the  authority  of  ihis 
passage,  no  doubt,  that  Hind  it  stated  in  Addison  on  Toils  (3rd  ed. 
p.  787  ;  4th  ed.  p.  79G  ;  5th  ed.  p.  184)  :  "Disparaging  criticisms 
by  one  tradesman  upon  the  goods  of  a  rival  tradesman  are  not 
[*149]  actionable,  unless  it  is  proved  that  they  have  been  mali- 
ciously and  fraudulently  made,  and  were  false  to  the  knowledge  of 
the  party  at  the  time  they  were  made.'1''  But  in  no  other  place  in 
the  Law  Journal  Report  is  there  any  hint  that  a  scienter  must  be 
proved,  although  the  Lord  Chief  Justice  gives  several  instances 
during  the  argument,  and  later  in  his  judgment,  in  which,  in  his 
opinion,  an  action  would  lie.  That  the  statement  was  false  to  the 
knowledge  of  the  defendant  is  cogent  evidence  of  malice  ;  but 
surely  any  other  evidence  of  malice  would  be  sufficient.  In  Best  & 
Smith  the  passage  cited  above  is  given  as  follows:  "  I  am  far  from 
saying  that  if  a  man  falsely  and  maliciously  makes  a  statement 
disparaging  an  article  which  another  manufactures  or  vends, 
although  in  so  doing  he  casts  no  imputation  on  his  personal  or  pro- 
fessional character,  and  thereby  causes  an  injury,  and  special  dam- 
age is  averred,  an  action  might  not  be  maintained.  For  although 
none  of.  us  are  familiar  with  such  actions,  still  we  can  see  that  a 
most  grievous  wrong  might  be  done  in  that  way,  and  it  ought  not 
to  be  without  remedy."  (3  B.  *fe  S.  269.)  And  so  in  the  Law 
Times  Reports  (7  L.  T.  355),  the  words  are  merely  "falsely  and 
maliciously  ;"  in  the  Jurist  (9  Jur.  N.  S.  539),  merely  "a  dispar- 
aging notice  ;"  though  the  Weekly  Reporter  (11  W.  R.  63)  con- 
tains, in  addition  to  "  falsely  and  maliciously,"  the  words  "  by 
statements  he  knows  to  be  false."  In  Western  Counties  Manure 
Co.  v.  Lawes  Manure  Co.,  the  declaration  before  the  Court  did 
not  contain  any  averment  "  as  the  defendants  well  knew."  (See  the 
whole  pleadings  in  Appendix  A.)  I  conclude,  therefore,  that  the 
defendant's  knowledge  of  the  falsity  of  his  statements  at  the  time 
he  makes  them  is  immaterial  in  this  action,  save  as  aggravating  the 
damages. 

In  Thomas  v.  Williams,  14  Ch.  D.  864  ;  49  L.  J.  Ch.  605  ;  28 
W.  R.  983  ;  43  L.  T.  91,  Fry,  J.,  decided  that  to  entitle  a  plaintiff 
to  an  injunction  to  restrain  a  libel  injurious  to  trade,  it  was  not 
necessary  that  he  should  prove  actual  damage.  But  see  Dick's  v. 
Brooks  (C.  A.),   15  Ch.  D.  22  ;  49  L.  J.  Ch.  812  ;  29    W.  R.  87  ; 

J  40  L.  T.  710  ;  43  L.  T.  71. 

\  Illustrations. 

The  defendant  published  an  advertisement,  denying  that  the  plaintiff  held 
any  patent  for  the  manufacture  of  "  self-acting  tallow  syphons  or  lubricators," 
and  cautioning  the  public  against  such  lubricators  as  wasting  the  tallow.  No 
special  damage  was  alleged.  Held,  that  the  words  were  not  a  libel  on  the 
plaintiff  either  generally,  or  in  the  way  of  his  trade,  but  were  only  a  reflection 
upon  the  snoods  sold  by  him,  which  was  not  actionable  without  special  damage. 
Emm  v.  Harlow,  5  Q.  B.  624 ;  13  L.  J.  Q.  B.  120  ;  Dav.  &  M.  507 
8  Jur.  571;  ante,  p.  31. 

(186) 


WORDS    CONCERNING   THINGS.  115 

"If  a  man  makes  a  false  statement  with  respect  to  the  goods  of  A.,  in  com- 
[*150]  paring  his  own  goods  with  those  of  A.,  and  A.  suiters  special  damage, 
will  not  an  action  lie?  "    Per  Cockburn,  C.  J.,  in 

Young  and  others  v.  Macrae,  32  L.  J.  Q.  B.  8  ; 
and  counsel  answers,  "  Certainly  it  would." 

"If  a  man  were  to  write  falsely  that  what  another  man  sold  as  Turkish  rhu- 
barb was  three  parts  brickdust,  and  special  damage  could  be  proved,  it  might 
be  actionable."    Per  Cockburn,  C.  J.,  in 

Young  and  others  v.  Macrae,  32  L.  J.  Q.  B.  7. 
The  defendant  published  a  certificate  by  a  Dr.  Muspratt,  who  had  compared 
the  plaintiffs'  oil  with  the  defendant's,  and  deemed  it  inferior  to  the  defendant's. 
It  was  alleged  that  the  certificate  was  false,  and  that  divers  customers  of  the 
plaintiffs  after  reading  it  had  ceased  to  deal  with  the  plaintiffs  and  gone  over  to 
the  defendant.  Held,  that  the  plaintiffs'  oil,  even  if  inferior  to  the  defendant's, 
might  still  be  very  good  ;  and  that  the  falsity  was  alleged  too  generally,  and 
that  therefore  no  action  lay.  It  was  consistent  with  the  declaration  that  every 
word  said  about  the  plaintiffs'  oil  should  be  true,  and  the  only  falsehood  the 
assertion  that  defendant's  was  superior  to  it,  which  would  not  be  actionable. 
"It  is  not  averred  that  the  defendant  falsely  represented  that  the  oil  of  the 
plaintiffs  had  a  reddish-brown  tinge,  was  much  thicker,  and  that  it  had  a  more 
disagreeable  odour.  If  that  had  been  falsely  represented,  and  special  damage 
had  ensued,  an  action  might  have  been  maintained." 

Young  and  others  v.  Macrae,  3  B.  &  S.  264  ;  32  L.  J.  Q.  B.  6  ;  11  W. 
R.  63  ;  9  Jur.  N.  S.  539  ;  7  L.  T.  354. 
The  defendants  falsely  and  without  lawful  occasion  published  a  detailed 
analvsis  of  the  plaintiffs'  artificial  manure  and  of  their  own,  in  which  the 
plaintiffs'  manure- was  much  disparaged  and  their  own  extolled.     Special  dam- 
age having  resulted,  held  that  the  action  lay. 

Western  Counties  Manure  Co.  v.  Lawcs  Chemical  Manure  Co.,  L.  R. 

9  Ex.  218  ;  43  L.  J.  Ex.  171;  23  W.  R.  5. 
See   Thorley's  Cattle  Food  Co.  v.  Massam,  6  Ch.  D.   582;  46  L.  J. 
Ch.  713  ;  14  Ch.  D.  763  ;  28  W.  R.  295,  966  ;  41  L.  T.  542  ;  42  L. 
T.  851. 
Salmon  v.  Isaac,  20  L.  T.  885. 
The  defendant  stated  in  Ireland  that  the  plaintiff's  ship  was  unseaworthy, 
consequently  her  crew  refused  to  proceed  to  sea  in  her,  and  a  negotiation  for 
the  sale  of  her  fell  through.     The  ship  was  in  England.     But  it  was  held  that 
this  fact  would  not  dve  an  English  Court  jurisdiction. 

Cast  >i  v.  Arnott,  2  C.  P.  D.  24 ;  46  L.  J.  C.  P.  3  ;  25  W.  R.  46 ;  35 
L.  T.  424. 

There  are  many  other  cases  in  which  words  produce  special  dam- 
age to  the  plaintiff  without  in  any  way  affecting  his  reputation  ; 
and  for  such  words,  if  spoken  without  lawful  occasion,  an  action 
on  the  case  will  lie,  provided  the  damage  be  the  necessary  or  prob- 
able consequence  of  the  words.  (See  ante,  p.  15.)  But  such  cases 
are  outside  the  scope  of  this  book. 


(187) 


CHAPTER  VI. 

PUBLICATION.  t*151l 

Publication  is  the  communication  of  the  defamatory  words  to 
some  third  person  or  persons.  It  is  essential  to  the  plaintiff's 
case  that  the  defendant's  words  should  be  expressed ;  the  law 
permits  us  to  think  as  badly  as  we  please  of  our  neighbours  so  long 
as  we  keep  our  uncharitable  thoughts  to  ourselves.  Merely  com- 
posing a  libel  is  not  actionable  unless  it  be  published.  And  it  is 
no  publication  when  the  words  are  only  communicated  to  the  person 
defamed  ;  forthat  cannot  injure  his  reputation.  A  man's  reputation 
is  the  estimate  in  which  others  hold  him  ;  not  the  good  opinion 
which  he  has  of  himself.  And  the  communication,  whether  it  be  in 
words,  or  by  signs,  gestures,  or  caricature,  must  be  intelligible 
to  such  third  person.  If  the  words  used  be  in  the  vernacular  of 
the  place  of  publication,  it  will  be  presumed  that  such  third  person 
understood  them,  until  the  contrary  be  proved.  And  it  will  be 
presumed  that  he  understood  them  in  the  sense  which  such  words 
properly  bear  in  their  ordinary  signification,  unless  some  reason 
appear  for  assigning  them  a  different  meaning. 

The  onus  lies  on  the  plaintiff  to  prove  publication  ;  and  such 
publication  must  of  course  be  prior  to  the  date  of  the  writ. 

Illustrations. 

To  shout  defamatory  words  on  a  desert  moor  where  no  one  can  hear  you  is 
not  a  publication  ;  but  "if  anyone  chances  to  hear  you,  it  is  a  publication,  although 
you  thought  no  one  was  by. 

[*152]  To  utter  defamatory  words  in  a  foreign  language  is  not  a  publication, 
if  no  one  present  understands  their  meaning  ;  but  if  defamatory  words  be  written 
in  a  foreign  language,  there  will  be  a  publication  as.  soon  as  ever  the  writing 
comes  into  the  hands  of  anyone  who  does  understand  that  language,  or  who 
gets  them  explained  or  tramiated  to  him. 

If  defamatory  words  be  spoken  in  English  when  the  only  person  present 
besides  the  plaintiff  is  a  German  who  does  not  understand  English,  this  is  no 
publication. 

Hurtert  v.  Weines,  27  Iowa,  134. 

Sending  a  letter  through  the  post  to  the  plaintiff,  properly  addressed  to  him, 
and  fastened  in  the  usual  way,  is  no  publication ;  and  the  defendant  is  not 
answera ble  for  anything  the  plaintiff  may  choose  to  do  with  the  letter  after  it 
has  once  safely  reached  his  hands. 

Barrow  v.  Lewellin,  Hob.  62. 

In  an  American  case  the  plaintiff,  after  so  receiving  a  libellous  letter  from 
the  defendant,  sent  for  a  friend  of  his  and  also  for  the  defendant  ;  he  then 
repeated  the  contents  of  the  letter  in  their  presence,  and  asked  the  defendant  if 
he  wrote  that  letter  ;  the  defendant,  in  the  presence  of  the  plaintiffs  friend, 
admitted  that  he  had  written  it.  Held,  no  publication  by  the  defendant  to  the 
plaintiff's  friend. 

Fonmlle  v.  Nease,  Dudley,  S.  C.  303. 

But  it  is  otherwise  if  a  message  be  sent  to  the  plaintiff  by  telegraph  ;  the 

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PUBLICATION.  1  1  7 

contents  of  the  telegram  are  necessarily  communicated  to  all  the  clerks  through 
whose  hands  it  passes.     So  with  a  postcard. 

Whitfield andothers  v.  S.  E.  By.  Co.,  E.  B.  &  E.  115  ;  27 L.  J.  Q.  B. 

229  ;  4  Jur.  N.  S.  688. 
Williamson  v.  Freer.  L.  R.  9  C.  P.  393  ;  43  L.  J.  C.  P.  161 ;  22  W. 

It.  878  ;  30  L.  T.  332. 
Robinson  v.  Jones,  4  L.  R.  Ir.  391. 
So  where  the  defendant  knew  that  the  plaintiff's  letters  were  always  opened 
by  his  clerk  in  the  morning,  and  yet  sent  a  libellous  letter  addressed  to  the 
plaintiff,  which  was  opened" and  read  by  the  plaintiff's  clerk  lawfully  and  in 
the  usual  course  of  business,  held  a  publication  by  the  defendant  to  the  plaintiff's 
clerk. 

Delacroix  v.   Therenot,  2  Stark.  63. 
So  where  the  defendant,  before  posting  the  letter  to  the  plaintiff,  had  it  copied. 
Held,  a  publication  by  the  defendant  to  his  own  clerk  who  copied  it, 
Keene  v.  Ruff,  1  Clarke  (Iowa),  482. 
So  where  the  defendant  wrote  a  letter  to  the  plaintiff  himself,  but  read  it  to 
a  friend  before  posting  it. 

Snyder  v.  Andrews,  6  Barbour  (New  York),  43. 
McCombs  v.  Tattle,  5  Blackford  (Indiana),  431. 
The  delivery  of  a  newspaper  containing  a  libel  to  the  proper  officer  of  the 
Commissioners  of  Stamps  and  Taxes  for  revenue  purposes  was  a  sufficient  publi- 
cation of  the  libel ;  although  the  proprietor  of  the  paper  was  required  by  law  so 
to  deliver  it. 

R.  v.  Amphlit,  4.  B.  &  C.  35  ;  6  D.  &  R.  125. 
So  the  delivery  of  a  manuscript  to  be  printed  is  a  sufficient  publication  ;  even 
[*153]  though  the  author  repent  and  suppress  all  the  printed  copies.     For  the 
compositor  must  hear  it  read. 

Baldwin  v.  Elphinston,  2  W.  Bl.  1037. 
This  may  be  considered  a  somewhat  harsh  decision,  as  the  compositor  does 
not  attend  to  the  substance  of  the  manuscript,  but  sets  it  up  in  type  mechani- 
cally ;  but  it  has  recently  been  acted  on  in  America. 

Trumbull  v.  Gibbons,  3  City  Hall  Recorder,  97. 
And  see  Watts  v.  Eraser  and  another,  7  Ad.  &  E.  223;  6  L.  J.  K.  B. 
226  ;  7  C.  &  P.  369  ;  1  M.  &  Rob.  449  ;  2  N.   &  P.   157  ;  1  Jur. 
671  ;  W.  W.  &  D.  451. 
At  all  events  where  it  is  proper  that  the  words  should  be  printed,  the  publi- 
cation, if  it  be  one,  to  the  printer  and  his  men  will  not  destroy  any  privilege 
which  might  otherwise  exist. 

Laiclessv.  The  Anglo-Eqyptian  Cotton  and  Oil  Co.,  L.  R.  4  Q.  B. 

262  ;  10  B.  &  S.  226  ;  38  L.  J.  Q.  B.  129  ;  17  W.  R.  498. 
Lakev.  Kiny,  1  Lev.  241  ;  1  Saund.  131  ;  Sid.  414  ;  1  Mod.  58.       . 
But  merely  to  be  in  possession  of  a  copy  of  a  libel  is  no  crime,  unless  some 
publication  thereof  ensue. 

R.  v.  Beere,  Carth.  409  ;  12  Mod.  219  ;  Holt,  422  ;  2  Salk.  417,  646; 

1  Ld.  Raym.  414. 
And  see  11  Hargrave's  St.  Tr.  322,  sub  Entick  v.  Carrington. 

Although  husband  and  wife  are  generally  to  be  considered  one 
person  in  "actions  of  tort  asT,well  as  of  contract  (Phillips  v.  Barnet. 
1  Q.  B.  D.  436),  still  the  plaintiff 's  wife  is  sufficiently  a  third  person 
to  make  a  communication  to  her  of  words  defamatory  of  her  husband 
a  publication  in  law.  (Wenman  v.  Ash,  13  C.  B.  836;  22  L.J. 
C.  P.  190  ;  1  C.  L.  R.  592;  17  Jurist,  579;  Jones  v.  Williams,  1 
Times  L.  R.  572.)  And  it  is  submitted  that  similarly  a  communi- 
cation to  the  husband  of  a  charge  against  his  wife  is  a  sufficient 
publication.  The  doubt  suggested  by  Jervis,  C.  J.,  in  Wenman  v. 
Ash  must  mean  that  he  considered  a  communication  to  the  husband 
of  a  report  prejudicial  to  his  wife  w&sprimd  facie  privileged  as  being 
a  friendly  act ;  not  that  it  was  no  publication.     To  communicate  to 

(189) 


1  I  8  PUBLICATION. 

a  wife  a  charge   or  complaint  against  her  husband  is  not  a  friendly 
act,  and  is  not  privileged.     (Jones y.  Williams,  supra.) 

The  converse  case  of  the  defendant  and  his  wife  seems  never  to 
have  been  decided.  Is  it  a  publication  if  a  man  tells  his  wife  what 
he  thinks  of  his  neighbours  ?  I  presume  it  is,  though  the  question 
seems  never  to  have  arisen  in  England;  probably  because  in  every 
such  case  there  has  been  an  almost  immediate  republication  of  the 
same  slander  (or  an  exaggerated  version  of  it)  by  the  wife  to  some 
third  person  ;  for  which  the  husband  would  be  equally  answerable  in 
damages,  and  which  would  be  easier  to  prove.  In  America  there  is 
a  dictum  that  the  delivery  of  a  libel  by  the  author  to  his  wife  "  in 
[*154]  confidence  "  is  privileged.  {Trumbull  v.  Gibbons,  3  City  Hall 
Recorder,  97.)  And  in  England  it  was  decided  in  Jones  v.  Thomas, 
34  W.  R.  104  ;  53  L.  T.  678;  50  J.  P.  149,  that  the  fact  that 
defendant's  wife  was  present  on  a  privileged  occasion,  and  heard 
what  her  husband  said,  would  not  take  away  the  privilege,  so  long 
as  her  presence,  though  unnecessary,  was  not  improper. 

The  plaintiff  must  prove  a  publication  by  the  defendant  in  fact. 
A  libel  is  deemed  to  be  published  as  soon  as  the  manuscript  has 
passed  out  of  defendant's  possession  (per  Holroyd,  J.,  in  Ii.  v.  Bur- 
dett,  4  B.  &  Aid.  143),  unless  it  comes  directly  and  unread  into  the 
possession  and  control  of  the  plaintiff.  That  some  third  person  had 
the  opportunity  of  reading  it  in  the  interval  is  not  sufficient,  if  the 
jury  are  satisfied  that  he  did  not  in  fact  avail  himself  thereof;  even 
though  it  is  clear  that  the  defendant  desh-ed  and  intended  publica- 
tion to  such  third  person. 

Illustrations. 

A.  letter  is  published  as  soon  as  posted,  and  in  the  place  where  it  is  posted,  if 
it  is  ever  opened  anywhere  by  any  third  person. 

Ward  v." Smith,  6  Bins?,  749  ;  4  M.  &  P.  595  ;  4  C.  &  P.  302. 
Clegg  v.  Laffer,  3  Moore  &  Scott,  727  ;  10  Bins;.  250. 
Warren  v.  Warren,  4  Tyr.  850  ;  1  C.  M.  &  R.  250. 
Shipley  v.  Todhunter,  7  C.  &  P.  680. 
The  defendant  wrote  a  letter  and  gave  it  to  B.  to  deliver  to  the  plaintiff.     It 
was  folded,  but  not  sealed.     B.  did  not  read  it ;  but  conveyed  it  direct  to  the 
plaintiff.     Held,  no  publication. 

Clutterbuck  v.  Chaffers,  1  Stark.  471. 
Day  v.  Bream,  2  Moo.  &  Rob.  54. 
The  defendant  threw  a  sealed  letter  addressed  to  the  plaintiff,   "  or  C,"  into 
M.'s  enclosure.     M.  picked  it  up  and  delivered  it  unopened  to  the  plaintiff  him- 
sel,  who  alone  was  libelled.     No  publication. 

Fonville  v.  Nease,  Dudley,  S.  C.  303  (American). 
By  the  38  Geo.  III.  c  71,  s.  17  (now  repealed),  the  proprietor  of  every  news- 
paper was  required  to  send  a  copy  of  every  issue  to  the  Stamp  Office  for 
Revenue  purposes.  Held,  that  proof  of  the  delivery  of  a  newspaper  to  the 
officer  at  the  Stamp  Office  was  sufficient  evidence  of  the  publication  of  a  libel 
contained  in  it  to  render  the  proprietor  liable  to  an  action  ;  "  as  the  officer  of 
the  Stamp  Office  would  at  all  events  have  an  opportunity  of  reading  the  libel 
himself." 

R.  v.  Amphlit,  4  B.  &  C.  35  ;  6  D.  &  R.  125. 

Ma.yne  v.  Fletcher,  9  B.  &  C.  382  ;  4.  Man.  &  Ry.  312. 

[*  155]  Posting  up  a  libellous  placard <ind  taking  it  down  again  before  anyone 
could  read  it  is  no  publication  ;  but  if  it  was  exhibited  long  enough  for  anyone 

(190) 


PUBLICATION    PER    ALIUM.  119 

to  read  it,   then  defendant  must  satisfy  the  jury  that  no  one  actually  did  read 

it. 

So  it  is  no  defence  that  the  third  person  was  not  intended  to 
overhear  the  slander  or  to  read  the  libel,  if  in  fact  he  has  done  so. 
An  accidental  or  inadvertent  communication  is  quite  sufficient. 
(See  S/iepheard  v.  Whitaker,  L.  R.  10  C.  P.  502  ;  32  L.  T.   402  ;  c. 

I.  ante,  p.  G.) 

Illustrations. 

The  defendant  by  mistake  directed  and  posted  a  libellous  letter  to  the  plain- 
tiff's employer  instead  of  to  the  plaintiff  himself.     Held,  a  publication. 
Fox  v.  Broderick,  14  Ir.  C.  L.  Rep.  453. 

And  see  Tompson  v.  Basil /rood ,  11  Q.  B.  D.  43  ;  52  L.  J.  Q.  B.  425  ; 
48  L.  T.  943  ;  48  J.  P.  55. 
Rev.  Samuel  Paine  sent  his  servant  to  his  study  for  a  certain  paper  which  he 
wished  to  show  to  Brereton  ;  the  servant  by  mistake  brought,  a  libellous  epitaph 
on  Queen  Mary,  which  Paine  inadvertently  handed  to  Brereton,  supposing  it  to 
be  the  paper  for  which  he  sent  ;  and  Brereton  read  it  aloud  to  Dr.  Hoyle.  This 
would  probably  be  deemed  a  publication  by  Paine  to  Brereton  in  a  civil  case. 
(Note  to  Mayne  v.  Fletcher,  4  Man.  &  Ry.  312)  ;  but  would  not  be  sufficient  in 
a  criminal  case. 

R  v.  Paine  (1695),  5  Mod.  1G7. 
For  in  a  criminal  case  it  is  essential  that  there  should  be  a  guilty  intention. 
11.  v.  Lord  Abingdon,  1  Esp.  228. 
See  also  Brett  v.  Watson,  20  W.  R.  723. 
Blake  v.  Stevens,  4  F.  &  F.  232  ;  11  L.  T.  542. 
But  if  I  compose  or  copy  a  libel,  and  keep  the  manuscript  in  my  study, 
intending  to  show  it  to  no  one,  and  it  is  stolen   by  a  burglar  and  published  by 
him  ;  it  is  submitted  that  there  is  no  publication  by  me,  either  in  civil  or  crim- 
inal proceedings. 

See  Weir  v.  Hoss,  6  Alabama,  881. 
But  it  would  be  a  publication  by  me,  if  through  any  default  of  mine  it  got 
abroad. 

Every  one  who  requests,  procures,  or  commands  another  to  pub- 
lish a  libel  is  answerable  as  though  he  published  it  himself.  And 
such  request  need  not  be  express,  but  may  be  inferred  from  the 
defendant's  conduct  in  sending  his  manuscript  to  the  editor  of  a 
magazine,  or  making  a  statement  to  the  reporter  of  a  newspaper, 
with  the  knowledge  that  they  will  be  sure  to  publish  it,  and  with- 
out any  effort  [*  156]  to  restrain  their  so  doing.  And  it  is  not  nec- 
essary that  the  defendant's  communication  be  inserted  verbatim,  so 
long  as  the  sense  and  substance  of  it  appear  in  print. 

This  rule  is  of  great  value  in  cases  where  the  words  employed  are 
not  actionable  when  spoken  ;  but  are  so  if  'written.  Here,  though 
the  proprieter  of  the  newspaper  is  of  course  liable  for  printing  them, 
still  it  is  more  satisfactory,  if  possible,  to  make  the  author  of  the 
scandal  defendant.  An  action  of  slander  will  not  lie  ;  but  if  he 
spoke  the  words  under  such  circumstances  as  would  ensure  their 
being  printed,  or  if  in  any  other  way  he  requested  or  contrived  their 
publication  in  the  paper,  he  is  liable  in  an  action  of  libel  as  the  act- 
ual publisher.      Qui  facit  per  alium  facit per  se. 

Illustrations. 
If  a  manuscript  in  the  handwriting  of  the  defendant  be  sent  to  the  printer  or 

(191) 


120  PUBLICATION. 

publisher  of  a  magazine,  who  prints  and  publishes  it,  the  defendant  will  be  liable 
for  the  full  damages  caused  by  such  publication,  although  there  is  no  proof 
offered  that  he  expressly  directed  the  printing  and  publishing  of  such  rnanu- 
script 

Bond  v.  Dovglas,  7  C.  &  P.  626. 

B.  v.  Lovett,  9  C.  &  P.  462. 

Burdett  v.  Abbot,  5  Dow,  H.  L.  201  ;  14  East,  1. 
And  this  is  so,  although  the  editor  has  cut  the   article  up,   omitting  the  most 
libellous  passages  and  only  publishing  the  remainder. 

Tarpley  v.  Blabey,  2  Bing.  N.  C.  437  ;  2  Scott,  642  ;  1  Hodges,  414 ; 
7  C.  &  P.  395. 

Pierce  v.  Ellis,  6  Ir.  C.  L.  R.  55. 

Strader  v.  Stryder,  67  111.  404. 
A  newspaper  reporter  told  defendant  he  should  read  defendant's  statements 
to  the  paper  for  publication.     Defendant  replied,  "  Let  them  go."     Held,  that 
defendant  had  published  them  in  the  paper. 

Clay  v.  People,  86  111.  147. 
So  where  Cooper  told  the  editor  several  good  stories  against  the  Rev.  J.  K. , 
and  asked  him  to  "show  Mr.  K.  up  ;"  and  subsequently  the  editor  published 
the  substance  of  them  in  the  newspaper,  and  Cooper  read  it  and  expressed  his 
approval  ;  this  was  held  a  publication  by  Cooper,  although  the  editor  knew  of 
the  facts  from  other  quarters  as  well. 

B.  v.  Cooper,  15  L.  J.  Q.  B.  206  ;  8  Q.  B.  533. 

And  see  Adams  v.  Kelly,  Ry.  &  Moo.  157  ;  and  the  judgments  of 
Byles  and  Mellor,  JJ.,  in  the  next  case,  L.  R.  4  Ex.  181—186. 
At  the  meeting  of  the  board  of  guardians,  at  which  reporters  were  present, 
it  was  stated  that  the  plaintiff  had  turned  his  daughter  out  of  doors,  and  that 
she  consequently  had  been  admitted  into  the  workhouse  and  had  become  charge- 
able to  the  parish.  Ellis,  one  of  the  guardians,  said,  "  I  hope  the  local  press 
will  take  notice  of  this  very  scandalous  case,"  and  requested  the  [*157]  chair- 
man, Prescott,  to  give  an  outline  of  it.  This  Prescott  did,  remarking,  "lam 
glad  gentlemen  of  the  press  are  in  the  room,  and  I  hope  they  will  give  publicity 
to  the  matter."  Ellis  added,  "And  so  do  I."  From  the  notes  taken  in  the 
room  the  reporters  prepared  a  condensed  account  which  appeared  in  the  local 
newspapers,  and  which,  though  partly  in  the  reporter's  own  language,  was  sub- 
stantially a  correct  report  of  what  took  place  at  the  meeting.  Held,  by  the 
majority  of  the  Court  of  Exchequer  Chamber  (Montague  Smith,  Keating  and 
Hannen,  JJ.,  Byles  and  Mellor,  JJ.,  dissenting),  that  Martin,  B.,  wTas  wrong 
in  directing  the  jury  that  there  was  no  evidence  to  go  to  the  jury  that  Prescott 
and  Ellis  had  directed  the  publication  of  the  account  which  appeared  in  the 
papers.  [N.  B. — Of  the  six  judges  concerned,  three  w7ere  of  one  opinion,  three 
of  the  other.] 

Parkes  v.  Prescott  and  Ellis,  L.  R.  4  Ex.  169  ;  38  L.  J.  Ex.  105  ;  17 
W.  R.  773  ;  20  L.  T.  537. 

But  though  merely  composing  a  libel  without  publishing  it  is  not 
actionable,  merely  publishing  it,  not  having  composed  it,  is  action- 
able. "  The  mere  delivery  of  a  libel  to  a  third  person  by  one  con- 
scious of  its  contents  amounts  to  a  publication  and  is  an  indictable 
offence."  (Per  Wood,  B.,  in  Maloney  v.  Bartley,  3  Camp.  213.) 
"  If  one  reads  a  libel,  that  is.  no  publication  of  it  ;  or  if  he  hears 
it  read,  it  is  no  publication  of  it  ;  for  before  he  reads  or  hears  it,  he 
cannot  know  it  to  be  a  libel  ;  or  if  he  hears  or  reads  it,  and  laughs 
at  it,  it  is  no  publication  of  it  ;  or  if  he  writes  a  copy  of  it,  and  does 
not  publish  it  to  others,  it  is  no  publication  of  the  libel  ;  but  if  after 
he  has  read  or  heard  it,  he  repeats  it,  or  any  part  of  it,  in  the  hear- 
ing of  others,  or  after  that  he  knows  it  to  be  a  libel,  he  reads  it  to 
others,  that  is  an  unlawful  publication  of  it."  (Per  Lord  Coke  in 
John  LarnVs  Case,  9  Rep.  60.) 

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PUBLICATION.  121 

Every  one  who  prints  or  publishes  a  libel  may  be  sued  by  the  per- 
son defamed  ;  and  to  such  an  action  it  is  no  defence  that  another 
wrote  it ;  it  is  no  defence  that  it  was  printed  or  published  by  the 
desire  or  procurement  of  another,  whether  that  other  be  made  a  de- 
fendant to  the  action  or  not.  All  concerned  in  publishing  the  libel 
or  in  procuring  it  to  be  published  are  equally  responsible  with  the 
author.  And  printing  the  libel,  or  causing  it  to  be  printed,  is 
primd  facie  evidence  of  publication.  (Burdett  v.  [*158]  Abbot,  5 
Dow,  H.  L.  at  p.  201  ;  Baldwin,  v.  ElphinstonyZ  W.  Bl.  1037.)  If 
the  libel  appear  in  a  newspaper,  the  proprietor,  the  editor,  the 
printer,  and  the  publisher,  are  liable  to  be  sued;  either  separately  or 
together.  In  all  cases  of  joint  publication  each  defendant  is  liable 
for  all  the  ensuing  damage.  And  there  is  no  contribution  between 
tort-feasors.  So  that  the  proprietor  of  a  paper  sued  jointly 
with  his  careless  editor  or  with  the  actual  composer  of  the 
libel  cannot  compel  either  of  his  co-defendants  to  recoup  him  the 
damages,  which  he  has  been  compelled  to  pay  the  plaintiff.  ( Col- 
burn  v.  Patmore,  1  C.  M.  &  R.  73  ;  4  Tyr.  677.) 

But  if  there  be  two  distinct  and  separate  publications  of  the  same 
libel,  a  defendant  who  was  concerned  in  the  first  publication,  but 
wholly  unconnected  with  the  second,  would  not  be  liable  for  any  dam- 
ages which  he  could  prove  to  have  been  the  consequence  of  the  second 
publication  and  in  no  way  due  to  the  first.  Nor,  on  the  other  hand, 
should  the  fact  that  other  actions  have  been  brought  for  other  pub- 
lications of  the  same  libel  be  taken  into  consideration  by  the  jury 
'in  assessing  the  damage  arising  from  the  publication  by  the  present 
defendant.  (Harrison  v.  Pearce,  1  F.  &  F.  567  ;  32  L.  T.  (Old  S." 
298  ;   Tucker  v.  Zawson,,  2  Times  L.  R.  593  ;  and  see  post,  p.  316. 

And  here  I  will  cite  the  remarks  of  Best,  C.  J.,  in  Be  Crespigny  v. 
Wellesley  (5  Bing.  pp.  402 — 406)  :  "If  a  man  receives  a  letter  with 
authority  from  the  author  to  publish  it,  the  person  receiving  it  will 
not  be  justified,  if  it  contains  libellous  matter,  in  inserting  it  in  the 
newspapers.  No  authority  from  a  third  person  will  defend  a  man 
against  an  action  brought  by  a  person  who  has  suffered  from  an  un- 
lawful act.  If  the  receiver  of  a  letter  publish  it  without  authority, 
he  is,  from  his  own  motion,  the  wilful  circulator  of  slander.  .  .  If 
the  person  receiving  a  libel  may  publish  it  at  all,  he  may  publish  it 
in  whatever  manner  he  pleases  ;  he  may  insert  it  in  all  the  journals, 
and  thus  circulate  the  calumny  through  every  region  of  the  globe. 
The  effect  of  this  is  very  different  from  that  of  the  repetition  of  oral 
slander.  In  the  latter  case,  what  has  been  said  is  known  only  to  a 
[*159]  few  persons,  and  if  the  statement  be  untrue,  the  imputation 
cast  upon  any  one  may  be  got  rid  of  ;  the  report  is  not  heard  of  be- 
yond the  circle  in  which  all  the  parties  are  known,  and  the  veracity 
of  the  accuser,  and  the  previous  character  of  the  accused,  will  be 
properly  estimated.  But  if  the  report  is  to  be  spread  over  the  world 
by  means  of  the  press,  the  malignant  falsehoods  of  the  vilest  of  man- 
kind, which  would  not  receive  the  least  credit  where  the  author  is 
known,  would  make  an  impression  which  it  would  require  much 
time  and  trouble  to  erase,    and   which   it   might   be    difficult,    if 

(193) 


122  TUISLICATION. 

not  impossible,  over  completely  to  remove.  .  .  Before  he  gave 
it  general  notoriety  by  circulating  it  in  print,  he  should  have  been 
prepared  to  prove  its  truth  to  the  letter  ;  for  he  had  no  more  right 
to  take  away  the  character  of  the  plaintiff,  without  being  able  to 
prove  the  truth  of  the  charge  that  he  made  against  him,  than  to 
take  his  property  without  being  able  to  justify  the  act  by  which  he 
possessed  himself  of  it.  Indeed,  if  we  reflect  on  the  degree  of  suf- 
fering occassioned  by  loss  of  character,  and  compare  it  with  that  oc- 
casioned by  loss  of  property,  the  amount  of  the  former  injury  far 
exceeds  that  of  the  latter." 

Illustrations. 

A  man  may  thus  be  guilty  both  of  libel  and  of  slander  at  the  same  moment  and 
by  the  same  act ;  as,  by  reading  to  a  public  meeting  a  defamatory  paper  written 
by  another.     (See  Precedent,  No.  4,  App.  A.) 

Hearne  v.  Stowell,  12  A.  &  E.  719  ;  6  Jur.  458  ;  4  P.  &  D.  69G. 
Hudson  brought  the  manuscript  of  a  libellous  song  to  Morgan  to  have  1,000 
copies  printed  ;  Morgan  printed  1,000  and  sent  300  to  Hudson's  shop.  Hud- 
son gave  several  copies  to  a  witness  who  sung  it  about  the  streets.  It  did  not 
appear  in  whose  writing  the  manuscript  was  ;  but  probably  not  in  Hudson's. 
Held,  that  both  Hudson  and  Morgan  had  published  the  libel. 

Johnson  v.  Hudson  and  Morgan,  7  A.  &  E.  233,  n.  ;  1  H.  &  W.  680. 
The  proprietor  of  a  newspaper  is  always  liable  for  whatever  appears  in  its 
columns  ;  although  the  publication  may  have  been  niade  without  his  knowledge 
and  in  his  absence. 

R.  v.  Walter,  3  Esp.  21. 
Storey  v.  Wallace,  11  111.  51. 
Scripps  v.  Reilly,  38  Mich.  10. 
But  now  in  criminal  cases,  see  G  &  7  Vict.  c.  96,  s.  7. 

R.  v.  Holbrook  and  nth,  rs,  3  Q.  B.   D.  60  ;    4  Q.  B.  D.  42  ;  47  L.  J. 
Q.  B.  35  ;  48  L.  J.  Q.  B.  113  ;    26  W.  R.  144  ;  27  W.  R.  313 ;    37 
L.  T.  530 ;  39  L.  T.  536. 
So  is  the  printer  ;  though  he  had  no  knowledge  of  the  contents. 

R.  v.  Borer,  6  How.  St.  Tr.  546  ;  and  see  2  Atkyns,  at  p.  472. 
.   [*160]  So,  in  England,  the  acting  editor  is  always  held  liable. 

Wafts  v.  Fraser  and  another,  7  C.  &  P.  369  ;  7  Ad.  &  E.  223  ;  1  M. 
&  Rob.  449  ;  2  N.  &  P.  157  ;  1  Jur.  671  ;  W.  W.  &  D.  451. 
In  America,  however,  though   the   proprietor  and  printer  of  a  paper  are 
always  held  liable,  the  editor  is,  it  would  seem,  allowed  to  plead  as  a  defence 
that  the  libel  was  inserted  without  his  orders  and  against  his  will. 
The  Commonwealth  v.  Kneeland,  Thacher's  C.  C.  346. 
Or  without  any  knowledge  on  his  part  that  the  article  was  a  libel  on  any  par- 
ticular individual. 

Smith  v.  Ashley,  (1846),  52  Mass.  (11  Met.)  367. 
The  proprietor  of  a  newspaper  is  liable  even  for  an  advertisement  inserted 
and  paid  for  by  Bingham;    although  the  plaintiff  is  bringing  another  action 
against  Bingham  at  the  same  time. 

Harrison  v.  Pearce,  1  F.  &  F.  567  ;  32  L.  T.  (Old  S.)  298. 
"  If  you  look  upon  the  editor  as  a  person  who  has   published  a  libellous 
advertisement  incautiously, rof  course  he  is  liable."     Per  Pollock,  C.  B.,  in 
Keyzor  and  another  v.  Netceomb,  1  F.  &  F.  559. 
If  a  country  newspaper  copy  and   publish  a  libellous  article  from  a  London 
newspaper,  the  country  paper  makes  the  article  its  own,  and  is  liable  for  all 
damages  resulting  from  its  publication  in  the  country.     The  fact  that  it  had 
previously  appeared  in  the  London  paper  is  no  defence  ;  it  will  not  even  tend 
to  mitigate  the  damages. 

Talbutt  v.  Clark,  2  M.  &  Rob.  312. 
Saunders  v.  Mills,  3  M.  &  P.  520  ;  6  Bing.  213. 
Evidence  that  the  plaintiff  had  in  a  previous  action  recovered  damages  against 

(194) 


UNCONSCIOUS    PUBLICATION.  123 

the  London  paper  for  the  same  article  is  altogether  inadmissable  ;    as  in  that 
action  damages  were  given  only  for  the  publication  of  the  libel  in  London. 
Greeny  v.  Garr,  7  C.  &  P.  64. 
And  see  Hunt  v.  Algar  and  others,  6  C.  &  P.  245. 
If  I  compose  a  libel  and  leave  it  in  my  desk  among  my  papers,  and  my  clerk 
surreptitiously  takes  a  copy  and  sends  it  to  the  newspapers,  it  is  submitted  that 
he  alone  is  liable  for  the  damage  caused  thereby.     I  am  liable  only  to  such  dam- 
ages as  the  jury  may  award  for  the  negligent  though  unintentional  publication 
to  my  clerk.     For  although  he  could  not  have  taken  a  copy,  had  I  not  first 
written  the  libel,  still  the  subsequent  republication  of  it  is  my  clerk's  own  inde- 
pendent act,   for  the  consequences  of  which  he  alone  is  liable.     Secus,  if  I  in 
any  way  encouraged  or  contrived  his  taking  a  copy,  knowing  that  he  would  be 
sure  to  publish  it  in  the  newspapers. 

So,  again,  every  sale  or  delivery  of  a  written  or  printed  copy  of 
a  libel  is  a  fresh  publication  ;  and  every  person  who  sells  or  gives 
away  a  written  or  printed  copy  of  a  libel  may  be  made  a  defendant, 
unless,  indeed,  he  can  satisfy  the  jury  that  he  was  ignorant  of  the 
contents.  The  onus  of  proving  this  lies  on  the  defendant,  and 
where  he  has  made  a  large  profit  by  selling  a  great  many  copies  of  a 
[*16l]  libel,  it  will  be  very  difficult  to  persuade  the  jury  that  he  was 
not  aware  of  its  libellous  nature.  ( Chub  v.  Flannagan,  6  C.  &  P. 
431.)  But  if  the  paper  was  sold  in  the  ordinary  way  of  business 
by  a  newsvendor  Avho  neither  wrrote  nor  printed  the  libel,  and  who 
neither  knew  nor  ought  to  have  known  that  the  paper  he  was  so 
selling  did  contain  or  was  likely  to  contain  any  libellous  matter,  he 
will  not  be  deemed  to  have  published  the  libel  which  he  thus  inno- 
cently disseminated. 

It  makes  no  difference  in  law  whether  the  libel  is  sold  to  the  pub- 
lic or  whether  a  copy  is  merely  shown  confidentially  to  a  friend. 
Each  is  equally  a  publication.  But  the  jury  will,  in  estimating  the 
damages,  attach  great  importance  to  the  mode  of  publication  :  as  an 
indiscriminate  public  sale  must  inflict  much  more  serious  injury  on 
the  plaintiff's  reputation.  The  defendant  could  not  afterwards  recall 
or  contradict  his  statements,  did  he  desire  to  do  so.  (See  per  Lord 
Denman,  C.  J.,  9  A.  &  E.  149.) 

Illustrations. 

The  plaintiff's  agent,  with  a  view  to  the  action,  called  at  the  office  of  the 
defendant's  newspaper,  and  made  them  find  for  him  a  copy  of  the  paper  that 
had  appeared  seventeen  years  previously,  and  bought  it.  Held,  that  this  was  a 
fresh  publication  by  the  defendant,  and* that  the  action  lay  in  spite  of  the  Statute 
of  Limitations." 

Duke  of  Brunswick  v.  Harmer,  14  Q.  B.  185  ;  19  L.  J.  Q.  B.  20  ; 
14  Jur.  110:  3  C.  &  K.  10. 
A  porter  who,  in  the  course  of  business,  delivers  parcels  containing  libellous 
hand-bills,  is  not  liable  in  an  action  for  libel,  if  shown  to  be  ignorant  of  the  con- 
tents of  the  parcel,  for  he  is  but  doing  his  duty  in  the  ordinary  way. 
Day  v.  Bream,  2  M.  &  Rob.  54. 
A  servant  carries  a  libellous  letter   for  his  master,  addressed  to  C.     It   is  his 
duty  not  to  read  it.  If  he  does  read  it,  that  is  a  publication  by  his  master  to  him, 
although  he  was  never  intended  to  read  it.     If  after  reading  it  he  delivers  it  to 
C.  then  this  is  a  publication  by  the  servant  to  C,  for  which  the  person  libelled, 
not  being  C,  can  sue  either  the  master,  or  the  servant,  or  both.     If  the  servant 
never  reads  it,  but  simply  delivers  it  as  he  was  bidden,  then  he  is  not  liable  to 
any  action,  unless  he  either  knew  or  ought  to  have  known  that  he  was  being 

U95) 


124  PUBLICATION. 

employed  illegally.     If  he  either  knew  or  ought  to  have  known,  then  it  is  no 
defence  of  him  to  plead  "  I  was  only  obeying  orders." 

The  defendant  kept  a  pamphlet  shop  ;  she  was  sick  and  upstairs  in  bed  ;  a 
libel  was  brought  into  the  shop  without  her  knowledge,  and  subsequently  sold 
[*162  ]  by  her  servant  on  her  account.  She  was  held  criminally  liable  for  the 
act  of  her  servant,  on  the  ground  that  "the  law  presumes  that  the  master  is 
acquainted  with  what  his  servant  does  in  the  course  of  his  business." 

R.  v.  I)odd,  2  Sess.  Cas.  33. 

Nutt's  Case,  Fitzg.  47  ;  1  Barnard.  306. 
But  later  judges  would  not  be  so   strict ;   the  sickness  upstairs,  if  properly 
proved  by  the  defendant,  would  now  be  held  an  excuse. 

R.  v.  Almon,  5  Bur.  2686. 

R.  v.  Gutch,  Fisher  and  Alexander,  Moo.  &  Mai.  433. 

And  in  criminal  cases,  see  6  &  7  Vict.  c.  96,  s.  7  post,  p.  433. 
A  rule  was  granted  calling  on  Wiatt  to  show  cause  why  he  should  not  be 
attached  for  selling  a  book  containing  a  libel  on  the  Court  of  King's  Bench. 
The  book  was  in  Latin.  On  filing  an  affidavit  that  he  did  not  understand  Latin, 
and  on  giving  up  the  name  of  the  printer  from  whom  he  obtained  it,  and  the 
name  of  the  author,  the  rule  was  discharged. 

R.  v.  Wiatt  (172-3,) 8  Mod.  123. 
The  defendants  were  newsvendors  on  a  large  scale  at  the  Royal  Exchange. 
In  the  ordinary  course  of  their  business  they  sold  several  copies  of  a  newspaper 
called  "  Money,"  which  contained  a  libel  on  the  plaintiff.  The  jury  found  that 
the  defendants  did  not,  nor  did  either  of  them,  know  that  the  newspapers  at  the 
time  they  sold  them  contained  libels  on  the  plaintiff  ;  that  it  was  not  by  negli- 
gence on  the  defendants'  part  that  they  did  not  know  there  was  any  libel  in  the 
newspapers  ;  and  that  the  defendants  did  not  know  that  the  newspaper  was  of 
such  a  character  that  it  was  likely  to  contain  libellous  matter,  nor  ought  they  to 
have  known  so.  Held,  that  defendants  had  not  published  the  libel,  but  had  only 
innocently  disseminated  it. 

Emmens  v.  Pottle  &  Son,  (C.  A.)  16  Q.  B.  D.  354  ;  55  L.  J.   Q.  B. 
51  ;  34  W.  R.  116  ;  53  L.  T.  808  ;  50  J.  P.  228. 

Every  repetition  of  a  slander  is  a  wilful  publication  of  it,  render- 
ing the  speaker  liable  to  an  action.  "  Tale-bearers  are  as  bad  as 
tale-makers."  *  It  is  no  defence  that  the  speaker  did  not  originate 
the  scandal,  but  heard  it  from  another,  even  though  it  was  a  cur- 
rent rumour  and  he  bond  fide  believed  it  to  be  true.  (  Watkin  v. 
Hall,  L.  R.  3  Q.  B.  396  ;  37  L.  J.  Q.  B.  125;  16  W.  R.  857  ;  18  L.T. 
[*  163]  561).  It  is  no  defence  that  the  speaker  at  the  time  named 
the  person  from  whom  he  heard  the  scandal.  (M,I}herso?i  v.  Daniels, 
10  B.  &  C.  270  ;  5  M.  &  R.  251.) 

This  proposition,  it  is  submitted,  correctly  states  the  existing  law 
on  the  point ;  but  it  would  certainly  not  have  been  accepted  as 
clear  law  in  the  last  century.  Great  difficulty  was  presented  by 
the  fourth  resolution  in  Lord  Northampton's  Case  (in  the  Star 
Chamber,  1613),  12  Rep.  134,  which  runs  as  follows: — "In  a 
private  action  for  slander  of  a  common  person,  if  J.  S.  publish  that 
he  hath  heard  J.  N.  say  that  J.  G.  was  a  traitor  or  thief  ;  in  an 
action  of  the  case,  if  the  truth  be  such,  he  may  justify.     But  if 

*  Mrs.  Cam.  "  But  surely  you  would  not  be  quite  so  severe  on  those  who  only 
repeat  what  they  hear  ? " 

Sir  Pet.  "  Yes,  Madam,  I  would  have  law  merchant  for  them  too  ;  and  in 
all  cases  of  slander  currency  whenever  the  drawer  of  the  lie  was  not  to  be  found, 
the  injured  parties  should  have  a  right  to  come  on  any  of  the  indorsers." — The 
School  far  Scandal. 

(190) 


REPETITION.  125 

J.  S.  publish  that  he  hath  heard  generally  without  a  certain  author, 
that  J.  G.  was  a  traitor  or  thief,  there  an  action  sur  le  case  lieth 
against  J.  S.  for  this,  that  he  hath  not  given  to  the  party  grieved 
any  cause  of  action  against  any  but  against  himself  who  published 
the  words,  although  that  in  truth  he  might  hear  them  ;  for  other- 
wise this  might  tend  to  a  great  slander  of  an  innocent ;  for  if  one 
who  hath  Icesam  phantasiam,  or  who  is  a  drunkard,  or  of  no 
estimation,  speak  scandalous  words,  if  it  should  be  lawful  for  a 
man  of  credit  to  report  them  generally  that  he  had  heard  scan- 
dalous words,  without  mentioning  of  his  author,  that  would  give 
greater  colour  and  probability  that  the  words  were  true  in  respect 
of  the  credit  of  the  reporter,  than  if  the  author  himself  should  be 
mentioned." 

Now,  in  the  first  place,  the  reason  here  assigned  for  -the  dis- 
tinction applies  only  to  cases  in  which  the  originator  of  the  scandal 
is  of  less  credit  than  the  retailer  of  it,  and  is  known  to  be  so  by 
those  to  whom  it  is  retailed.  If  those  who  hear  the  tale  repeated 
know  nothing  of  the  person  cited  as  the  authority  for  it,  it  is  to 
them  precisely  as  if  the  name  were  omitted  altogether,  and  it  had 
been  told  as  an  on  (lit.  If,  on  the  other  hand,  the  person  named 
as  the  author  of  the  assertion  is  of  greater  credit  and  respectability 
than  the  reporter,  vouching  his  authority  clearly  does  the  plaintiff's 
reputation  a  greater  injury  than  if  no  name  had  been  given  at  all. 
And  even  in  the  case  where  the  author  of  the  story  is  well  known 
to  be  a  person  of  no  credit,  how  does  that  excuse  the  defendant's 
act  in  repeating  and  circulating  it  ?  It  appears  to  me  to  make  it 
all  the  worse  ;  he  cannot  even  plead  : — "  I  had  it  on  good  authority 
and  reasonably  believed  it  true."  By  the  mere  repetition  of  it  the 
defendant  endorses  and  gives  credit  to  the  tale,  although  he  states 
that  he  heard  it  from  A.  B.  ;  and  those  who  hear  it  from  him  will 
repeat  it  everywhere,  and  cite  as  their  [*164]  authority,  not  A.  B., 
but  the  defendant,  whom  we  presume  to  be  of  greater  respectability 
and  ci*edit. 

Again,  on  general  principles,  how  can  a  slander  by  A.  be  any 
justification  for  a  subsequent  slander  by  B.  ?  "Because  one  man 
does  an  unlawful  act  to  any  person,  another  is  not  to  be  permitted 
to  do  a  similar  act  to  the  same  person.  Wrong  is  not  to  be  justified, 
or  even  excused,  by  wrong."  (Per  Best,  C.  J.,  in  De  Crespigny  v. 
Wellesley,  5  Bing.  404.) 

Moreover,  the  twelfth  volume  of  Reports  is  a  book  of  ques- 
tionable authority  ;  it  was  issued  after  Lord  Coke's  death,  com- 
piled by  some  one  else  from  papers  which  Lord  Coke  had  neither 
digested  nor  intended  for  the  press.  (See  the  remarks  of  Mr.  Har- 
grave,  11  St.  Tr.  301  ;  of  Holroyd,  J.,  in  Lewis  v.  Walter,  4  B.  & 
Aid.  614  ;  and  of  Parke,  J.,  in  M'Pherson  v.  Daniels,  10  B.  &  C.  * 
275  ;  5  M.  &  R.  251.)  The  fourth  resolution,  as  reported,  appears 
inconsistent  with  the  preceding  resolution,  the  third  ;  and  also  with 
the  many  decisions  in  the  case.  And  even  if  it  be  correctly  reported, 
it  is  but  an  obiter  dictum,  for  the  Star  Chamber  had  no  jurisdiction 
over  private  slander,  and  the  case  before  them  was  one  of  scan- 
dalum  magnatum,  which  branch  of  the  law  is  governed  by  special 

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1 2G  PUBLICATION". 

statutes  of  its  own.  (See  ante,  pp.  134 — 137.)  And,  moreover,  the 
defendant  in  that  case  had  not  in  fact  named  his  authority  at  the 
time,  hut  only  confessed  it  subsequently. 

Still  so  great  was  the  weight  justly  given  to  every  word  of  my 
Lord  Coke,  that  this  resolution  was  assumed  to  be  law  in  Crawford 
v.  Middleton  (1662),  1  Lev.  82  ;  Davis  v.  Lewis  (1796),  V  T.  R.  17  ; 
and  Woolnoth  v.  Meadows  (1804),  5  East,  463  ;  2  Smith,  28.  The 
last  two  cases  decided  that  at  all  events  it  is  too  late  to  name  the 
author  of  the  report  for  the  first  time  in  the  plea  of  justification  ; 
he  must  be  named  at  time  of  publication  to  raise  any  ground  of 
defence  under  this  resolution. 

In  Maitland  v.  Goldney  (1802),  2  East,  426,  Lord  Ellenborough 
intimated  that  the  doctrine  did  not  apply  where  the  reporter  knew 
that  his  informant,  whom  he  named,  had  retracted  the  charge  since 
making  it,  or  where  for  any  other  reason  the  reporter  at  the  time  of 
repeating  the  tale  knew  it  was  false,  and  unfounded.  Next,  in  Lewis 
v.  Walter  (1821),  4  B.  &  Aid.  615,  Holroyd  and  Best,  JJ.,  expressed 
an  opinion  that  the  rule  had  been  laid  down  too  largely  in  the  Earl 
of Northampton's  Case,  and  ought  to  be  qualified  by  confining  it  to 
cast's  where  there  is  a  fair  and  just  reason  for  the  repetition  of  the 
slander  (that  is,  I  presume,  to  cases  where  the  repetition  is  privileged). 
Then,  in  February,  1829,  the  Court  of  Common  Pleas  decided  that 
in  actions  of  libel  there  was  no  such  rule.  (De  Crespigny  v.  Wellesley, 
5  Bing.  392,  in  which  ease  Best,  C.  J.,  says  : — "  Of  what  use  is  it  to 
[*  165]  send  the  name  of  the  author  with  a  libel  that  is  to  pass  into 
a  country  where  he  is  entirely  unknown  :  the  name  of  the  author 
of  a  statement  will  not  inform  those  who  do  not  know  his  character, 
whether  he  is  a  person  entitled  to  credit  for  veracity  or  not  ; 
whether  his  statement  was  made  in  earnest  or  by  way  of  joke; 
whether  it  contains  a  charge  made  by  a  man  of  sound  mind  or  the 
delusion  of  a  lunatic")  And  lately,  in  JUPJPherson  v.  Daniels,  10 
B.  &  C.  263  ;  5  M.  &  R.  251  (Michaelmas,  1829),  the  rule  in  Lord 
Northampton 's  Case  was  directly  challenged  and  expressly  over- 
ruled ;  and  it  was  held  that  for  a  defendant  to  prove  that  he  said 
at  the  time  that  he  heard  the  tale  from  A.,  and  that  A.  did  in  fact 
tell  it  to  the  defendant,  was  no  justification.  It  must  be  proved 
that  the  defendant  repeated  the  story  on  a  justifiable  occasion,  and 
in  the  bona,  fide  belief  in  its  truth  [and  that  is  a  defence  of 
privilege,  see  Bromage  v.  Drosser,  4  B.  &  C.  247  ;  6  D.  &  R.  296  ; 
1  C.  &  P.  475,  post,  p.  207].  This  decision  has  been  approved  of 
and  followed  in  Ward  v.  Weeks,  7  Bing.  211  ;  4  M  &  P.  796  ;  and 
in  Watkin  v.  Hall,  L.  R.  3  Q.  B.  396  ;  37  L.  J.  Q.  B.  125  ;  16  W. 
R.  857  ;   ;   18  L.  T.  561  ;  and  see  Dennett  v.  Dennett,  6  C.  &  P.  588. 

And  in  America  the  law  appears  to  be  the  same.  {Jarnigan  v. 
Fleming,  43  Miss.  711  ;  Treat  v.  Drowning,  4  Connecticut,  408; 
Runlde  v.  Meyers,  3  Yeates  (Pennsylvania),  518  ;  Dole  v.  Lyon,  10 
Johns.  (New  York),  447  ;  Inman  v.  Foster,  8  Wend.  602.) 

Illustrations. 

.     Woor  told  Daniels  that  M'Pherson's  horses  had  been  seized  from  the  coach 
on  the  road,  that  he  had  been  arrested,  and  that  the  bailiffs  were  in  his  house. 

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REPETITION.  127 

Daniels  went  about  telling  everyone,  "  Woor  says  that  M'Pherson's  horses  have 
been  seized  from  the  eoaeh  on  the  road,  that  he  himself  has  been  arrested,  and 
that  the  bailiffs  arc  in  his  house."  Held,  that  Darnels  was  liable  to  an  action 
by  M'Pherson  for  the  slander,  although  he  named  Woor  at  the  time  as  the 
person  from  whom  he  had  heard  it ;  that  it  was  no  justification  to  prove  that 
Woor  did  in  fact  say  so  :  defendant  must  go  further  and  prove  that  what  Woor 
said  was  true. 

M'Pherson  v.  Daniels,  10  B.  &  C.  263  ;  5  M.  &  R.  251. 
The  defendant  said  to  the  plaintiff  in  the  presence  of  others  :—"  Thou  art  a 
sheep-stealing  rogue,  and  Farmer  Parker  told  me  so."     Held,  that  an  action  lay. 
It  was  urged  that  the  plaintiff  ought  not  to  have  judgment,  because  it  was 
not  averred  "that  Farmer  Parker  did^not  tell  the  defendant  so  ;  but  the  Court 
was  of  opinion  that  such  an  averment  was  unnecessary,  it  being  quite  immaterial 
whether  Farmer  Parker  did   or  did  not  tell  the  defendant  so. 
Gardiner  v.  Atwater  (1756),  Say.  265. 
Leir,s  v.  Walter  (1617),  3  Bulstr.  225;  Cro.  Jac.  406,  413;  Rolle's 

Rep.  444. 
Meggs  v.  Griffith,  Cro.  Eliz.  400  ;  Moore,  408  ;  ante,  p.  127. 
Read's  Case,  Cro.  Eliz.  645. 
[*  166]  The  defendant  said  to  the  plaintiff,  a  tailor,  in  the  presence  of  others  : 
"  1  heard  you  were  run  away,"  scilicet,  from  your  creditors.     Held,  that  an 
action  lay. 

Davis  v.  Lewis,  7  T.  R.  17. 
Mr.  and  Mrs.  Davies  wrote  a  libellous  letter  to  the  Directors  of  the  London 
Missionary  Society,  and  sent  a  copy  to  the  defendant,  who  published  extracts 
from  it  in  a  pamphlet.  The  defendant  stated  that  the  letter  was  written  by 
Mr.  and  Mrs.  Davies,  and  at  the  time  he  wrote  the  pamphlet  he  believed  all 
the  statements  made  in  the  letter  to  be  true.  Held,  no  justification  for  his  pub- 
lishing it. 

Tidman  v.  Ainslie  (1854),  10  Exch.  63. 

And  see  Mills  and  wife  v.  Spencer  and  wife  (1817),  Holt,  N.  P.  533. 
M'Gregor  v.  Thicaites  (1824),  3  B.  &  C.  24  ;  4  D.  &  R.  695. 
A  rumour  was  current  on  the  Stock  Exchange  that  the  chairman  of  the  S.  E. 
Ry.  Co.  had  failed  ;  and  the  shares  in  the  company  consequently  fell  ;  there- 
upon the  defendant  said,  "  You  have  heard  what  has  caused  the  fall — I  mean, 
the  rumour  about  the  S.  Eastern  chairman  having  failed  ? "  Ih id,  that  a  plea 
that  there  was  in  fact  such  a  rumour  was  no  answer  to  the  action. 

Watkin  v.  Hall,  L.  R,  3  Q.  B.  396  ;  37  L.  J.  Q.  B.  125  ;  16  W.  R, 

857;  18  L.  T.  561. 
See  Richards  v.  Richards,  2  Moo.  &  Rob.  557. 
If  at  a  meeting  of  a  board  of  guardians  charges  were  made  against  the 
plaintiff,  this  does  not  justify  the  owner  of  a  newspaper  in  publishing  them  to 
the  world  :  it  is  no  justification  to  plead  that  such  charges  were  in  fact  made, 
and  that  the  alleged  libel  was  an  impartial  and  accurate  report  of  what  took 
place  at  such  meeting. 

Purcell  v.  Sowler,  1  C.  P.   D.  781  ;  2  C.  P.  D.  215  ;  46  L.  J.  C.  P. 
308  ;  25  AV.  R.  362  ;  36  L.  T.  416. 
Davison  v.  Duncan,  7  E.  &  B.  229  ;  26  L.  J.  Q.  B.  104  ;  3  Jur.  N.  S. 
613  ;  5  W.  R.  253  ;  28  L.  T.  (Old  S.)  265. 
Popham  v.  Pidcburn,  7H.&K  891  ;  31  L.  J.  Ex.  133  -.  8  Jur.  N. 
S.  179  :  10  W.  R.  324  ;  5  L.  T.  846. 

And  here  note  a  great  distinction  between  libel  and  slander. 
The  actual  publisher  of  a  libel  may  be  an  innocent  porter  or 
messenger,  a  mere  hand,  unconscious  of  the  nature  of  his  act  ;  and 
for  which  therefore  his  employers  shall  be  held  liable,  and  not  he. 
Whereas  in  every  case  of  the  republication  of  a  slander,  the 
publisher  acts  consciously  and  voluntarily  ;  the  repetition  is  his 
own  act.  Therefore,  if  I  am  in  any  way  concerned  in  the  making 
or   publishing   of  a   libel,    I   am  liable    for   all  the    damage   that 

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128  PUBLICATION. 

ensues  to  the  plaintiff  from  its  publication.  But  if  I  slander  A.,  I 
am  only  liable  for  such  damages  as  result  directly  from  that  one 
utterance  by  my  own  lips.  [*167]  If  B.  hears  me  and  chooses  to 
repeat  the  tale,  that  is  B.'s  own  act ;  and  B.  alone  is  answerable 
should  damage  to  A.  ensue.  In  an  action  against  me  such  special 
damage  would  be  too  remote.  For  each  publication  of  a  slander  is 
a  distinct  and  separate  act,  and  every  person  repeating  it  becomes 
an  independent  slanderer,  and  he  alone  is  answerable  for  the  con- 
sequences of  his  own  unlawful  act. 

Thus,  by  the  law  of  England,  as  it  at  present  stands,  the  person 
who  invents  a  lie  and  maliciously  sets  it  in  circulation  may  some- 
times escape  punishment  altogether,  while  a  person  who  is  merely 
injudicious  may  be  liable  to  an  action  through  repeating  a  story 
which  he  believed  to  be  the  truth,  as  he  heard  it  told  frequently  in 
good  society.  For  if  I  originate  a  slander  against  you  of  such  a 
nature  that  the  words  are  not  actionable  per  se,  the  utterance  of 
them  is  no  ground  of  action,  unless  special  damage  follows.  If  I 
myself  tell  the  story  to  your  employer,  who  thereupon  dismisses 
you,  you  have  an  action  against  me  ;  but  if  I  only  tell  it  to  your 
friends  and  relations  and  no  pecuniary  damage  ensues  from  my 
own  communication  of  it  to  any  one,  then  no  action  lies  against 
me  ;  although  the  story  is  sure  to  get  round  to  your  master  sooner 
or  later.  The  unfortunate  man  whose  lips  actually  utter  the  slan- 
der to  your  master,  is  the  only  person  that  can  be  made  defendant  ; 
for  it  is  his  publication  alone  which  is  actionable  as  causing  special 
damage.  The  law  is  the  same  in  America.  (Goughx.  Goldsmith, 
44  Wis.  262  ;  28  Amer.  R.  579  ;  Shurtleff  v.  Parker,  130  Mass. 
293  ;  39  Amer.  R.  454.)  But  this  apparent  hardship  only  arises 
where  the  words  are  not  actionable  without  proof  of  special  dam- 
age. Where  the  words  are  actionable  per  se,  the  jury  find  the 
damages  generally,  and  will  judge  from  the  circumstances  which  of 
the  defendants  is  most  to  blame. 

There  are  two  apparent  exceptions  to  this  rule  : 

I.  Where  by  communicating  a  slander  to  A.,  the  defendant  puts 
A.  under  a  moral  necessity  to  repeat  it  to  some  other  person  imme- 
diately concerned  ;  here,  if  the  defendant  knew  the  relation  in 
which  A.  stood  to  this  other  person,  he  will  be  taken  to  have 
contemplated  this  result  when  he  spoke  to  A.  In  fact,  here  A.'s 
repetition  is  the  natural  and  necessary  consequence  of  the  defen- 
dant's communication  to  A. 

[*168]  II.  Where  there  is  evidence  that  the  defendant,  though 
he  spoke  only  to  A.,  intended  and  desired  that  A.  should  repeat  his 
words,  or  expressly  requested  him  to  do  so  :  here  the  defendant  is 
liable  for  all  the  consequences  of  A.'s  repetition  of  the  slander  ; 
for  A.  thus  becomes  the  agent  of  the  defendant.  (As  to  Principal 
and  Agent,  see  Law  of  Persons,  c.  XII.,  post,  p.  411.) 

Illustrations. 

Weeks  was  speaking  to  Bryce  of  the  plaintiff  and  said,  "  He  is  a  rogue  and 
a  swindler  ;  I  know  enough  about  him  to  hang  him."     Bryce  repeated  this  to 

(200) 


REPETITION.  129 

Bryer  as  Weeks'  statement.  Bryer  consequently  refused  to  trust  the  plaintiff. 
Held,  that  the  judge  was  right  in  nonsuiting  the  plaintiff  :  for  the  words  were 
not  actionable  per  se  ;  and  the  damage  was  too  remote. 

Ward  v.   Wtrks,  7  Bing.  211  ;  4  M.  &  P.  796. 
The  defendant's  wife  charged  Sirs.  Parkins  with  adultery.     She  indignantly 
told  her  husband,  her  natural  protector  :  he  was  unreasonable  enough  to  insist 
upon  a  separation  in  consequence.     Held,  that  for  the  separation  the  defendant 
was  not  liable. 

Parkins  et  vx.  v.  Scott  et  ux.,  1  H.  &  C.  153  ;  31  L.  J.  Ex.  331  ; 
8  Jur.  N.  S.  593  ;  10  W.  R.  562  ;  6  L.  T.  394. 

See  Dixon  v.  Smith,  5  H.  &  N.  450  ;  29  L.  J.  Ex.  125. 
H.  told  Mr.  Watkins  that  the  plaintiff,  his  wife's  dressmaker,  was  a  woman 
of  immoral  character  ;  Mr.  Watkins  naturally  informed  his  wife  of  this  charge, 
and  she  ceased  to  employ  the  plaintiff.  Held  that  the  plaintiff's  loss  of  Mrs. 
Watkins'  custom  was  the  natural  and  necessary  consequence  of  the  defendant's 
communication  to  Mr.  Watkins. 

Bern/  v.  Handley,  16  L.  T.  263. 

See  Gillett  v.  Bullimnt,  7  L.  T.  (Old  S.)  490. 

Kendillon  v.  Maltby,  1  Car.  &  Marsh.  402. 

It  has  sometimes  been  held,  on  the  principle  of  Volenti  nonfit 
injuria,  that  if  the  only  publication  proved  at  the  trial  be  one 
brought  about  by  the  plaintiff's  own  contrivance,  the  action  must 
fail.  Thus,  in  King  v.  Waring  et  ux.,  5  Esp.  15,  Lord  Alvanley 
decided,  that  if  a  servant,  knowing  the  character  which  his  master 
will  give  him,  procures  a  letter  to  be  written,  not  with  a  fair  view 
of  inquiring  the  character,  but  to  procure  an  answer  upon  which 
to  ground  an  action  for  a  libel,  no  such  action  can  be  maintained. 
So  in  Smith  v.  Wood,  3  Camp.  323,  where  the  plaintiff,  hearing 
that  defendant  had  in  his  possession  a  copy  of  a  libellous  caricature 
of  the  plaintiff,  sent  an  agent  who  asked  to  see  the  picture,  and 
the  defendant  showed  it  him  at  his  request,  Lord  Ellenborough 
ruled  that  this  was  no  sufficient  evidence  of  publication  and  non- 
suited the  plaintiff. 

[*169]  But  these  cases,  so  far  as  the  question  of  publication 
merely  is  concerned,  must  be  taken  to  be  overruled  by  The  Duke  of 
Brunswick  v.  Harmer,  14  Q.  B.  185  ;  19  L.  J.  Q.  B.  20  ;  14  Jur. 
110  ;  3  C.  &  K.  10.  Whether  or  no  the  plaintiff's  conduct  in  him- 
self provoking  or  inviting  the  publication  on  which  he  afterwards 
bases  his  action  may  amount  to  a  ground  of  privilege  as  excusing 
the  publication  made,  is  a  different  question,  which  will  be  dis- 
cussed post,  pp.  234-238.  And  indeed  in  many  of  the  older  cases 
the  judges  say,  "  there  is  no  sufficient  publication  to  support  the 
action,"  when  they  mean  in  modern  parlance  that  the  publication 
was  privileged  by  reason  of  the  occasion.  (See  judgment  of  Best, 
J.,  in  Fairman  v.  Ives,  5  B.  &  Aid.  646  ;  1  D.  &  R.  252  ;  1  Chit. 
85  ;  and  Robinson  v.  May,  2  Smith,  3.)  And  note  that  a  publica- 
tion induced  by  the  prosecutor  is  sufficient  in  a  criminal  case.  (R. 
v.  Carlile  1  Cox,  C.  C.  229.) 


9   MB.  &  SLAN.  (201) 


CHAPTER  VII. 

[*170]  JUSTIFICATION. 

The  truth  of  any  defamatory  words  is,  if  pleaded,  a  complete 
defence  to  any  action  of  libel  or  slander  (though  alone  it  is  not  a 
defence  in  a  criminal  trial).  The  onus,  however,  of  proving  that 
the  words  are  true  lies  on  the  defendant.  The  falsehood  of  all 
defamatory  words  is  presumed  in  the  plaintiff's  favour,  and  he  need 
o-ive  no  evidence  to  show  they  are  false  ;  but  the  defendant  can 
rebut  this  presumption  by  giving  evidence  in  support  of  his  plea. 
If  the  jury  are  satisfied  that  the  words  are  true  in  substance  and  in 
fact,  they  must  find  for  the  defendant,  though  they  feel  sure  that 
he  spoke  the  words  spitefully  and  maliciously.  On  the  other  hand,  if 
the  words  are  false,  and  there  be  no  other  defence,  the  jury  must 
find  for  the  plaintiff,  although  they  are  satisfied  that  the  defendant 
bond  fide  and  reasonably  believed  the  words  to  be  true  at  the  time 
he  uttered  them. 

But  the  whole  libel  must  be  proved  true,  not  a  part  merely.  The 
justification  must  be  as  broad  as  the  charge,  and  must  justify  the 
precise  charge.  If  any  material  part  be  not  proved  true,  the  plain- 
tiff is  entitled  to  damages  in  respect  of  such  part.  (  Wearer  v. 
Lloyd,  1  C.  &  P.  295  ;  2  B.  &  C.  678  ;  4  D.  &  R.  230  ;  Ingram 
v.  Lawson,  5  Bing.  N.  C.  66  ;  6  Scott,  775  ;  1  Dowl.  125  ;  1  Arn. 
387  ;  3  Jur.  73  ;  6  Bing.  N.  C.  212  ;  8  Scott,  471  ;  4  Jur.  151  ;  9  C. 
&  P.  326.)  Thus,  where  a  libellous  paragraph  in  a  newspaper  is 
introduced  by  a  libellous  heading,  it  is  not  enough  to  [*17l]  prove 
the  truth  of  the  facts  stated  in  the  paragraph,  defendant  must  also 
prove  the  truth  of  the  heading.  (Mountney  v.  Walton,  72  B.  &  A. 
D.  673  ;    Chalmers  v.  Shacked,  6  C.  &  P.  475.) 

But  where  the  ^  gist  of  the  libel  consists  of  one  specific  charge 
which  is  proved  to  be  true,  defendant  need  not  justify  every  ex- 
pression which  he  has  used  in  commenting  on  the  plaintiff's  con- 
duct. Nor,  if  the  substantial  imputation" be  proved  true,  will  a 
slight  inaccuracy  in  one  of  its  details  prevent  defendant's  succeed- 
ing, provided  such  inacccuracy  in  no  way  alters  the  complexion  of 
the  affair,  and  would  have  no  different  effect  on  the  reader  than 
that  which  the  literal  truth  would  produce.  (Alexander  v.  J¥.  K 
Bail.  Co.,  34  L.  J.  Q.  B.  152  ;  11  Jur.  K  S.  619  ;  13  W.  R.  651  ; 
0  B.  &  S.  340  ;  cf.  Stockdale  v.  Tarte,  4  A.  &.  E.  1016  ;  Blake  v. 
Stevens,  4  F.  &  F.  239  ;  11  L.  T.  544.)  If  epithets  or  terms  of 
general  abuse  be  used  which  do  not  add  to  the  sting  of  the  charge, 
they  need  not  be  justified  {Edwards  v.  Bell,  1  Bing.  403  ;  Morri- 
son v.  llarmer,  3  Bing.  K.  C.  767  ;  4  Scott,  533  ;  3_IIodgcs,  108)  ; 
but  if  they  insinuate  some  further  charge  in  addition  to  the  main 
imputation,  or  imply  some  circumstance  substantially  aggravating 

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JUSTIFICATION.  131 

such  main  imputation,  then  they  must  be  justified  as  well  as  the 
rest.  (Per  Maule,  J.,  in  Helsham  v.  Blackwooa,  11  C.  B.  129  ;  20 
L.  J.  C.  P.  192  ;  15  Jur.  861.)  In  such  a  case  it  will  be  a  question 
for  the  jury  whether  the  siibtitance  of  the  libellous  statement  has 
been  proved  true  to  their  satisfaction.  (  Wurman  v.  Iline,  1  Jur. 
820  ;  Weaver  v.  Lloyd,  2  B.  &  C.  G78  ;  4  D.  &  R  230  ;  1  C.  & 
P.  295  ;  Behrevs  v.  Allen,  8  Jur.  N.  S.  118  ;  3  F.  &  F.  135.)  "It 
would  be  extravagant,"  says  Lord  Denman  (in  Cooper  v.  Lawson, 
8  Ad.  &  E.  753  ;  1  P.  &  1).  15  ;  1  W.  W.  &  H.  601  ;  2  Jur.  919  ;) 
"  to  say  that  in  cases  of  libel  every  comment  upon  facts  requires  a 
justification.  A  comment  may  introduce  independent  facts,  a  jus- 
tification of  which  is  necessary,  or  it  may  be  the  mere  shadow  of 
the  previous  imputation."  And  see  Lefroy  v.  Burnside  (No.  2), 
4  L.  R.  Ir.  556. 

[*172]  So  in  criminal  cases,  if  the  whole  of  the  plea  of  justification 
be  not  proved,  the  Crown  will  be  entitled  to  a  verdict.  (B.  v.  New- 
man, 1  E.  &  B.  268,  558  ;  22  L.  J.  Q.  B.  156  ;  Dears.  C.  C.  85  ;  17 
Jur.  617  ;  3  C.  &  K.  252.) 

In  actions  of  slander  of  title  it  would  seem  that  the  plaintiff  has 
to  prove  that  the  words  are  false  ;  it  does  not  lie  on  the  defendant 
to  prove  them  true.     See  Burnett  v.  Tak,  45  L.  T.  743. 

Illustrations. 

The  editor  of  one  newspaper  called  the  editor  of  another  "  a  felon  editor." 
Justification,  that  the  plaintiff  had  been  convicted  of  felony,  and  sentenced  to 
twelve  months' imprisonment.  The  Court  of  Appeal  held  the  plea  bad,  for 
not  averring  that  the  plaintiff  was  still  enduring  the  punishment  when  the 
words  were  uttered  ;  for  that  by  the  9  Geo.  4,  c.  32,  s.  3,  a  person  who  has 
been  convicted  of  felony,  and  who  has  undergone  the  full  punishment,  is  in 
law  no  longer  a  felon.  [A  strong  decision  ;  for  ordinary  readers  unacquainted 
with  that  statute  would  surely  understand  "  felon  editor  "  to  mean  a  man  who 
had  been  convicted  of  felony,  but  was  now  out  of  prison,  editing  a  paper. 
The  felon  when  in  prison  is  usually  called  a  "  convict."] 

Levman  v.  Latimer,  3  Ex.  D.  15,  352  ;  47  L.  J.  Ex.  470  :  25  W.  R. 
751  ;  26  W.  R.  305  ;  37  L.  T.  360,  819  ;  14  Cox,  C.  C.  51. 
Words  complained  of,  that  the  plaintiff  was  a  "  libellous  journalist,"     Proof 
that  he  had  libelled  one  man,  who  had  recovered  from  him  damages  £100,  held 
insuftiGient. 

Wakley  v.  Cooke  and  Healey,  4  Ex.  511  ;  19  L.  J.  Ex.  91. 
Libel  complained  of  :— that  no  boys  had  for  the  last  seven  years  received 
instruction  in  the  Free  Grammar  School  at  Lichfield,  of  which  plaintiff  was 
head  master,  and  that  the  decay  of  the  school  seemed  mainly  attributable  to 
the  plaintiff's  violent  conduct.  Plea  of  justification,  that  no  boys  had  in  fact 
received  instruction  in  the  school  for  the  last  seven  years,  and  that  the  plaintiff 
had  been  guilty  of  violent  conduct  towards  several  of  his  scholars,  was  held 
bad  on  special  demurrer,  because  it  wholly  omitted  to  connect  the  decay  of  the 
school  with  the  alleged  violence,  and  therefore  left  the  second  part  of  the  libel 
unjustified. 

Smith  v.  Parker,  13  M.  &  W.  459  ;  14  L.  J.  Ex.  52  ;  2  D.  &  L.  394. 
Libel  complained  of  : — "I  see  that  the  restoration  of  Skirlaugh  Church  has 
fallen  into  the  hands  of  an  architect  who  is  a  Wesleyan,  and  can  have  no  expe- 
rience in  church  work.  Can  you  not  do  something  to  avert  the  irreparable 
less  which  must  be  caused  if  any  of  the  masonry  of  this  ancient  gem  of  art  be 
ignorantly  tampered  with  ?  "  Justification:  "  the  facts  contained  in  the  letter 
are  true,  and  the  opinions  expressed  in  it,  whether  right  or  wrong,  were  hon- 
estly held  and  expressed  by  the  defendant."    Particulars  under  this  plea  :  "  the 

(203) 


132  JUSTIFICATION. 

plaintiff  cannot  show  experience  in  church  work,  i.  e.,  of  the  kind  which  in  the 
opinion  of  the  defendant  was  requisite."  Held,  that  this  was  no  justification 
at  all,  because  the  letter  obviously  meant  that  the  plaintiff  could  show  no  expe- 
rience [*173]  in  the  work  which  he  had  been  employed  to  execute.  Verdict 
for  the  plaintiff.     Damages  £50. 

Botterill  and  (mother  v.  WhyteJiead,  41  L.  T.  588. 
Libel  complained  of  :— that  the  plaintiff  had   "bolted,"  leaving  some  of  the 
tradesmen  of  the  town  to  lament  the  fashionable  character  of  his  entertainment. 
Proof   that  he  had  quitted  the  town  leaving  some  of  his  bills  unpaid,  held 
insufficient. 

O'Brien  v.  Bryant,  16  M.  &  W.  168  ;  16  L.  J.  Ex.  77  :  4  D.  &  L.  341. 
Libel  complained  of  :— that  the  plaintiff,  having  challenged  his  opponent  to 
a  duel,  spent  the  whole  of  the  night  preceding  in  practising  with  his  pistol,  and 
killed  his  opponent,  and  was  therefore  guilty  of  murder.  Proof  that  the  plain- 
tiff had  killed  his  opponent,  and  had  been  tried  for  murder,  held  insufficient. 
For  the  charge  of  pistol  practising  was  considered  a  separate  and  substantial 
charge,  and  it  was  not  justified. 

Helsham  v.  Blackwood,  11  C.  B.  128  ;  20  L.  J.  C.  P.  187  ;  15  Jur. 
861. 
The  libel  complained  of  was  headed—"  How  Lawyer  B.  treats  his  Clients," 
followed  by  a  report  of  a  particular  case  in  which  one  client  of  Lawyer  B.  had 
been  badly  treated.  That  particular  case  was  proved  to  be  correctly  reported, 
but  this  was  held  insufficient  to  justify  the  heading,  which  implied  that  Lawyer 
B.  generally  treated  his  clients  badly. 

Bis/top  v.  Latimer,  4  L.  T.  775. 

See  also  Mountney  v.  Watton,  2  B.  &  Ad.  673. 

Chalmers  v.  Shackell,  6  C.  &  P.  475. 

Clement  v.  Lewis  and  others,  3  Brod.  &  Bing.  297  ;    7  Moore,  200  ; 
3  B.  &  Aid.  702. 
Libel   complained  of  -.—that  the  plaintiff,  a  proctor,  had  three  times  rbbeen 
suspended  from  practice  for  extortion.     Proof  that  he  had  once  been  so  sus- 
oended  was  held  insufficient. 

Clarkson  v.  Lawson,  6  Bing.   266  ;    3  M.  &  P.  605  ;    6  Bing.  587  ;  4 
M.  &  P.  356. 

See  also  Johns  v.  Gittings,  Cro.  Eliz.  239. 

Goodburne  v.  Bowman  and  others,  9  Bing.  532. 

Clark  v.  Taylor,  2  Bing.  N.  C.  654  ;  3-  Scott,  95  ;  2  Hodges,  65. 

Blake  v.  Stevens  and  others,  4  F.  &  F.  232  ;  11  L.  T.  543. 
•  But  when  the  libel  complained  of  exposed  the  "  homicidal  tricks  of  those 
impudent  and  ignorant  scamps  who  had  the  audacity  to  pretend  to  cure  all 
diseases  with  one  kind  of  pill,"  asserted  that  "  several  of  the  rotgut  rascals  had 
been  convicted  of  manslaughter,  and  fined  and  imprisoned  for  killing  people 
with  enormous  doses  of  their  universal  vegetable  boluses,"  and  characterized 
the  plaintiffs'  system  as  "  one  of  wholesale  poisoning  ;  "  and  it  was  proved  at 
the  trial  "that  the  plaintiffs'  pills,  when  taken  in  large  doses,  as  recommended 
by  the  plaintiffs,  were  highly  dangerous,  deadly  and  poisonous,"  and  "  that 
two  persons  had  died  in  consequence  of  taking  large  quantities  of  them  ;  and 
that  the  people  who  had  administered  these  pills  were  tried,  convicted,  and 
imprisoned  for  the  manslaughter  of  these  two  persons  ;  "  this  was  held  a  suffi- 
cient justification,  although  the  expressions  "  scamps,"  "rascals,"  and  "whole- 
sale [*174]  poisoning  had'  not  been  fully  substantiated  :  the  main  charge  and 
gist  of  the  libel  being  amply  sustained. 

Morrison  v.  Harmer,  3  Bing.  N.  C.  767  ;  4  Scott,  533  ;  3  Hodges,  108. 

Edsatt  v.  Bussell,  4  M.  &  Gr.  1090  ;  5  Scott,  N.  R.  801  ;  2  Dowl". 
N.  S.  641  ;  12  L.  J.  C.  P.  4  ;  6  Jur.  996. 
Libel  complained  of  :— "  L.,  B.  and  G.  are  a  gang  who  live  by  card-sharping." 
Pleas  :  not  guilty,  and  a  justification  giving  several  specific  instances  in  which 
persons  named  had  been  cheated  by  the  trio  at  cards.  Held,  by  Cockburn,  C. 
J.,  when  two  specific  instances  had  been  proved,  that  the  plea  had  been  proved 
in'  substance,  and  that  it  was  not  necessary  to  prove  the  other  instances  alleged. 

Reg.  pros.  Lcmbri  v.  Labouchere,  14  Cox,  C.  C.  419. 

And  see  Willmett  v.  Harmer  and  another,  8  C.  &  P.  695. 
(204) 


REPETITION.  133 

The  libel  complained  of  was  a  notice  published  by  a  railway  company  to  I  be 
effect  thai  the  plaintiff  had  been  convicted  of  riding  in  a  train  for  which  his 
ticket  was  not  available,  and  was  sentenced  to  be  fined  £1,  or  to  three  weeks' 
imprisonment  in  default  of  payment.  Proof  that  he  had  been  so  convicted  and 
fined  £1,  and  sentenced  to  a  fortnight's  imprisonment  in  default  of  payment, 
held  sufficient ;  as  the  error  could  not  have  made  any  difference  in  the  effect 
which  the  notice  would  produce  on  the  mind  of  the  public. 

Alexander  v.  .V.  E.  /,'.  Co.,  34  L.  J.  Q.  B.  152  ;  11  Jur.  N.  8.  619  ; 
13  W.  R.  651  ;  6  15.  &  S.  340. 

But  see  Owynm  v.  S.  E.  R.  Co.,  18  L.  T.  738. 

Biggs  v.  G.-E.  It.  Co.,  16  W.  11.  908  ;  18  L.  T.  482. 

See  also  Lay  v.  Lawaon,  4  Ad.  &  E.  795. 

Edwards  v.  Bell  and  others.  1  Bins;.  403. 

Tighe  v.  Cooper,  7  E.  &  B.  639  ;  26  L.  J.  Q.  B.  215  ;  3  Jur.  N.  S.  716. 

This  rule,  that  the  whole  of  the  libel  must  be  justified  to  enable 
the  defendant  to  .succeed,  applies  to  all  cases  of  reported  speeches 
or  repetitions  of  slander.     Thus,  if  the  libel  complained  of  be,  "  A. 

B.  said  that  the  plaintiff  had  been  guilty  of  fraud,  etc., "  it  is  of  no 
avail  to  plead  that  A.  B.  did  in  fact  make  that  statement  on  the 
occasion  specified.  Each  repetition  is  a  fresh  defamation,  and  the 
defendant  by  repeating  A.  B.'s  words  has  made  them  his  own,  and 
is  legally  as  liable  as  if  he  had  invented  the  story  himself.  The 
only  plea  of  justification  which  will  be  an  answer  to  the  action 
must  not  merely  allege  that  A.  B.  did  in  fact  say  so,  but  must  go  on 
to  aver  with  all  necessary  particularity  that  every  statement  which 
A.  B.  is  reported  to  have  made  is  true  in  substance  and  in  fact.  A 
previous  publication  by  another  of  the  same  defamatory  words  is  no 
f*l/5]  justification  for  their  repetition.  (See  ante,  c.  VI.,  Publica- 
tion, pp  162 — 168.)  Still  less  is  it  any  evidence  of  their  truth. 
(R  v.  JYeioman,  1  E.  &  B.   268,  558  ;    3    C.   &  K.    252  ;    Dears.  C. 

C.  85  ;  22  L.  J.  Q.  B.  156  ;   17  Jur.  617.) 

The  opposite  doctrine  was  laid  down  in  the  fourth  resolution  in 
the  Earl  of  Northampton 's  Case,  12  Rep.  134,  but  that  case  never 
professed  to  apply  to  actions  of  libel,  but  to  actions  for  slander  only; 
and  even  in  actions  of  slander  it  must  now  be  taken  not  to  be  law. 
(See  ante,  pp.  163  —  165;  De  Crespigny  v.  Wcllesley,  5  Bing.  392;  2 
M.  &  P.  695;  M'Phersonv.  Daniels,  10  B.  &C.  270;  5  M.  &  R.  251; 
Watkin  v.  Hall,  L.  R.  3  Q.  B.  396  ;  37  L.  J.  Q.  B.  125;  16  W.  R. 
857;  18  L.  T.  501.) 

It  was  considered  that  this  rule  pressed  too  severely  upon  news- 
paper proprietors  and  editors,  who  had  in  the  ordinary  course  of 
their  business  presented  to  the  public  a  full,  true  and  impartial 
account  of  what  really  took  place  at  a  public  meeting,  considering 
no  doubt  that  thereby  they  were  merely  doing  their  duty,  whereas 
the  law  held  them  guilty  of  libel.  And  so  the  second  section  of  the 
Newspaper  Libel  and  Registration  Act  was  passed  in  1881  for  their 
protection.  (See/>os£,  p.^377.)  Fair  and  accurate  reports  of  judi- 
cial and  parliamentary  proceedings  were  already  privileged  (post,  pp. 

248—265.) 

Illustrations. 

Woor  told  Daniels  that  M'Pherson  was  insolvent  ;  Daniels  went  about  telling 
his  friends  "  Woor  says  M'Pherson  is  insolvent."     Proof  that  Woor  had  in  fact 

(205) 


134  JUSTIFICATION. 

said  so  was  held  no  answer  to  the  action.     Daniels  was  liable  in  damages  unless 
he  could  also  prove  the  truth  of  AYoor's  assertion. 

M'Pherson  v.  Daniels,  10  B.  &  C.  268  ;  5  M.  &  R.  251. 
A  rumour  was  current  on  the  Stock  Exchange  that  the  chairman  of  the  S. 
E.  R.  Co.  had  failed  ;  and  the  shares  of  the;  company  consequently  fell.  ;  there- 
upon the  defendant  said,  "  You  have  heard  what  has  caused  the  fall— I  mean, 
the  rumour  about  the  S.  Eastern  chairman  having-  failed  '!"  Held,  that  a  plea 
that  there  was  in  fact  such  a  rumour  was  no  answer  to  the  action. 

Watkin  v.  JIaJl,  L.  R.  3  Q.  B.  396  ;  37  L.  J.  Q.  B.  125  ;  10  W.  R. 

857  ;  18  L.  T.  561. 
Richards  v.  Richards,  2  Moo.  &  Rob.  557. 
At  a  meeting  of  the  West  Hartlepool  Improvement  Commissioners,  one  of  the 
commissioners  made  some  defamatory  remarks  as  to  the  conduct  of  the  former 
secretary  of  the  Bishop  of  Durham  in  procuring  from  the  Bishop  a 
license  for  the  chaplain  of  the  West  Hartlepool  cemetery.  These  remarks  were 
reported  in  the  local  newspaper  ;  and  the  secretary  brought  an  action  against 
the  owner  of  the  newspaper  for  libel.  A  plea  of  justification,  alleging  that 
such  remarks  were  iu  fact  made  at  a  public  meeting  of  the  commissioners,  and 
thai  the  alleged  [*176]  libel  was  an  impartial  and  accurate  report  of  what  took 
place  at  such  meeting,  was  held  bad  on  demurrer. 

Davison  v.  Duncan,  7  E.  &  B.  2^9  ;  26  L.  J.  Q.  B.  104  ;  3  Jur.  N. 
S.  613  ;  5  W.  R.  253  ;  28  L.  T.  (Old  S.)  265. 
The  defendants,  the  printers  and  publisher  of  the  Manchester  Courier,  pub- 
lished in  their  paper  a  report  of  the  proceedings  at  a  meeting  of  the  Board  of 
Guardians  for  the  Altrincham  Poor  Law  Union,  at  which  ex  parte  charges  were 
made  against  the  medical  officer  of  the  Union  Workhouse  at  Knutsford,  of 
neglecting  to  attend  the  pauper  patients  wdien  sent  for.  Held  that  the  matter 
was  one  of  public  interest  ;  but  that  the  report  was  not  privileged  by  the  occa- 
sion,'although  it  was  admitted  to  be  a  bond  fide  and  a  correct  account  of  what 
passed  at  the  meeting;  and  the  plaintiff  recovered  40s.  damages  and  costs. 

Purcett  v.  Sowlt  r,  1  C.  P.  D.  781  ;  affirmed  on  appeal,  2  C.  P.J).  215; 

46  L.  J.  C.  P.  308  ;  25  W.  R.  362  ;  36  L.  T.  416. 
See  also  Pierce  v.  Ellis,  6  Ir.  C   L.  R.  55. 
So  also  a  newspaper  proprietor  will  be  held  liable  for  publishing  a  report 
made  to  the  vestry  by  their  medical  officer  of  health,  even  although  the  vestry 
are  required  by  Act  of  Parliament  sooner  or  later  to  publish  such  report  them- 
selves 

Popham  v.  Pickburn,  7  H.  &  N.  891 ;  31  L.  J.  Ex.  133  ;  8  Jur.  N.S. 

179  ;  10  W.  R.  324  ;  5  L.  T.  846. 
See  also  Churl  ton  v.  Watton,  6  C.  &  P.  385. 
So  even  in  reports  of  judicial  proceedings,  which  if  fair  and  accurate  are  privi- 
leged, if  the  reporter  merely  sets  out  the  facts  as  stated  by  counsel  for  one 
party'  and  does  not  give  the  evidence,  or  merely  says  that  all  that  counsel  stated 
was  proved  a  justification  that  counsel  did  in  fact  say  so,  and  that  all  he  stated 
was  in  fact  proved,  is  insufficient,  the  facts  stated  by  counsel  must  also  be  jus- 
tified and  proved. 

Lewis  v.  Walter,  4  B.  &  Aid.  605. 
Saunders  v.  Mills,  3  M.  &  P.  508  ;  G  Bing.  218. 
See  also   Flint  v.  Pike,  4  B.  &  C.  473  ;  6  D.  &  R.  520;  and  the 
remarks  of  Lord  Compbell  in  • 

I,,  wis  v.  Levy,  E.  B.  &  E.  544  ;  4  Jur.  K  S.  970  ;  27  L.  J.  Q.  B.  282. 
Ris  libellous  to  publish  a  highly-coloured  account  of  judicial  proceedings, 
mixed  with  the  reporter's  own  observations  and  conclusions  upon  what  passed 
in  Court,  containing  an  insinuation  that  the  plaintiff  had  committed  perjury  ; 
and  it  is 'no  justification  to  pick  out  such  parts  .of  the  libel  as  contain  an  account 
of  the  trial,  and  to  plead  that  such  parts  are  true  and  accurate,  leaving  the 
extraneous'matter  altogether  unjustified. 

Stiles  v.  Nokes,  1  East,  493 ;  same  case  sub  nomine  Uarr  v.  Jones, 
3  Smith,  491. 

At    the    same  time    a  defendant   may  in  mitigation    of  damages 

justify  as    to  one     particular    part     of'  the    libel,     provided    such 

(20G) 


PLEA.  135 

part  contains  imputations  distinct  from  the  rest.  (Per  Tindal, 
C.  J.,  in  Clarke  v.  Taylor,  2  Bing.  N".  C.  664  ;  3  Scott, 
95  ;  2  Hodges,  05.)  .So  lie  may  justify  as  to  one 
[*177]  part,  and  plead  privilege  t<>  the  rest,  or  deny  that  he  ever 
spoke  or  published  the  rest  of  the  words.  But  in  all  these  cases  the 
part  selected  must  be  severable  from  the  rest  so  as  to  be  intelligi- 
ble by  itself,  and  must  also  convey  a  distinct  and  separate 
imputation  against  the  plaint  ill'.  (J/"'  Greg 'or  v.  Gregory,  11  M.  & 
W.  287  ;  12  L.  J.  Ex.  204  ;  2  Dowl.  N.  S.  769  ;  Churchill  v.  Hunt, 
2  B.  &  Aid,  0S5  ;  1  Chit.  480  ;  Huberts  v.  Brown,  lo  Bing.  519  ;  4 
M.  &  Scott,  407  ;  Biddulph  v.  Chamberlayne,  17  Q.  B.  351.) 

Again  where  the  words  are  laid  with  an  innuendo  in  the  state- 
ment of  claim,  the  defendant  may  justify  the  words,  either  with  or 
.without  the  meaning  alleged  in  such  innuendo  ;  or  he  may  do  both. 
(  Watlcin  v.  Hall,  L.  R.  3  Q.  B.  396  ;  37  L.  J.  Q.  B.  125  ;  16  \V.  R. 
857  ;  18  L.  T.  561.)  That  is,  he  may  deny  that  the  plaintiff  puts  the 
true  construction  on  his  words,  and  assert  that,  if  taken  in  their  nat- 
ural and  ordinary  meaning,  his  words  will  be  found  to  be  true  ;  or  he 
may  boldly  allege  that  the  words  are  true,  even  in  the  worst  sig- 
nification that  can  be  put  upon  them.  But  it  seems  that  a  defendant 
may  not  put  a  meaning  of  his  own  on  the  words,  and  say  that  in  that 
sense  they  are  true  ;  for  if  he  deny  that  the  meaning  assigned  to  his 
words  in  the  statement  of  claim  is  the  correct  one,  he  must  be  con- 
tent to  leave  it  to  the  jury  at  the  trial  to  determine  wdiat  meaning 
the  words  naturally  bear.)  Brembridge  v.  Latimer,  12  W.  R.  878  ; 
10  L.  T.  816.)  Nor  may  he  plead  :  "  I  did  not  publish  precisely 
the  words  stated  in  the  claim  ;  but  something  similar,  and  that 
something  similar  is  true  in  substance  and  in  fact."  In  Ireland  the 
defendant  must  justify  the  innuendo  as  well  as  the  words.  (Ilort 
v.  Beade,  Ir.  R.  7  C.  L.  551.) 

A  justification  must  always  be  specially  pleaded,  and  with  suffi- 
cient particularity  to  enable  plaintiff  to  know  precisely  what  is  the 
charge  he  will  have  to  meet.  If  the  libel  makes  a  vague  general 
charge,  as  for  instance,  that  the  plaintiff  is  a  swindler,  it  is  not  suffi- 
cient to  plead  that  he  is  [*178]  a  swindler.  The  defendant  must  set 
forth  the  specific  facts  which  he  means  to  prove  in  order  to 
show  that  the  plaintiff  is  a  swindler.  {B  Anson  v.  Stuart,  1 
T.  R.  748.)  A  plea  of  justification  is  always  construed  strictly 
against  the  party  pleading  it.  (Leyman  v.  Latimer,  3  Ex.  D.  15, 
352.)  It  must  justify  the  whole  of  the  words  to  which  it  is  pleaded, 
and  it  must  set  forth  facts  issuably.  {Jones  v.  Stevens,  11  Price, 
235  ;  Newman  v.  Bail//,  2  Chit.  665  ;  Holmes  v.  Catesby,  1  Taunt. 
5  t3.)  "  The  plea  ought  to  state  the  charge  with  the  same  precision 
as  in  an  indictment."  (Per  Alderson,  B.,  in  Hickinbotham  v. 
Leach,  10  M.  &  W.  363  ;  2  Dowl.  N.  S.  270.)  And  at  the  trial 
it  must  be  proved  as  strictly  as  an  indictment  for  the  offence  it 
imputes.  (Per  Tindal,  C.  J., 'in  Chalmers  v.  ShaoJcell,  6  C.  &  P.  at 
p.  478.  Per  Lord  Denman,  C.  J.,  in  Wilnrett  v.  Harmer,  8  C.  & 
P.  at  p.  697.]  Indeed  it  is  said  that  if  words  amount  to  a  charge 
of  felony,  and  the  defendant  justifies,  and  the  jury  find  the  plea 
proved,  the  plaintiff  may  at  once  be  put  upon  his    trial  before   a 

(207) 


136  JUSTIFICATION. 

petty  jury,  without  the  necessity  of  any  bill  being  found  by  a  grand 
jury.  (Per  Lord  Kenyon  in  Cook  v.  Field,  3  Esp.  134.  See  the 
note  to  Prosser  v.  Howe,  2  C.  &  P.  422  ;  Johnston  v.  Browning,  0 
Mod.  21V.) 

Placing  a  justification  on  the  record  is  not  by  itself  evidence  of 
malice  on  the  part  of  the  defendant  ;  but  it  may  aggravate  the 
damages,  if  the  defendant  either  abandons  the  plea  at  the  trial  or 
fails  to  prove  it.  (  Warwick  v.  Foulkes,  12  M.  &  W.  508  ;  Wilson 
v.  Bobiuson,  7  Q.  B.  68  ;  14  C.  J.  Q.  B.  196  ;  9  Jur.  726  ;  Simpson 
v.  Bobinson,  12  Q.  B.  511  ;  18  L.J.  Q.  B.  73  ;  13  Jur.  187  ;  Caid- 
fleld  v.   Whitworth,  16  W.  R.  936  ;   18  L.  T.  527.) 

In  a  criminal  case  it  is  not  sufficient  to  prove  the  truth  of  the  libel  ; 
the  defendant  must  also  prove  that  it  was  for  the  public  benefit  that 
the  matters  charged  should  be  published  (6  &  7  Vict.  c.  96,  s.  Sj,p>ost, 
p.  437).  And  indeed  before  1843  the  truth  of  the  libel  was  no  de- 
fence at  all  to  an  indictment ;  the  maxim  prevailed,  "  the  greater 
the  truth  the  greater  the  libel."  Yet  it  was  always  otherwise  with  a 
civil  action  ;  there  the  truth  was  always  a  complete  defence.  For  in 
[*179]  a  civil  action  the  benefit  or  detriment  to  the  public  is  not 
in  issue  ;  the  plaintiff  is  seeking  to  put  in  his  own  pocket  damages 
for  an  alleged  injury  to  a  character  to  which  he  had  no  right.  In 
the  vast  majority  of  cases  it  is  clearly  right  that  culprits  should  be 
made  to  appear  in  their  true  colors  :  peccata  enim  nocenlium  nota 
esse  et  oportere  et  expedire^ — Paulas.  And  some  men  may  be 
deterred  from  committing  an  act  of  dishonesty  or  immorality  by 
the  knowledge  that,  if  discovered,  it  may  always  be  brought  up 
against  them,  wherever  they  go,  to  the,  end  of  their  lives.  But  in 
other  cases  where  a  man  has  retrieved  his  character  by  long  years 
of  good  behaviour,  it  is  clearh^  morally  wrong  for  one  who  knows 
of  his  early  delinquencies  to  come  and  blast  the  reputation  which 
he  has  fairly  earned.  It  has,  therefore,  been  urged  that  an  action 
ought  to  lie,  where  the  plaintiff's  antecedents  have  been  maliciously 
raked  up  and  wantonly  published  to  the  world,  without  any  benefit  to 
society.  Prisoners  constantly  complain  that  it  is  impossible  for 
them  to  earn  a  livelihood  by  honest  labour  on  coming  out  of  prison, 
because  as  soon  as  they  obtain  employment  anywhere,  the  police 
inform  their  master  of' the  fact  of  their  previous  conviction,  and 
they  are  at  once  discharged.  And  in  a  recent  case,  B.  y.Seymore, 
Winchester  Spring  Assizes,  1880,  counsel  intimated  that  it  was  the 
rule  in  the  West  of  England  for  policemen  so  to  do.  But  Mr. 
Justice  Hawkins  at  once  "  expressed  his  opinion  that  it  was  not  the 
duty  of  the  police  to  do  so.  The  police,  he  considered,  ought  to 
be  the  friends  of  released  criminals  and  help  them  to  return  to  an 
honest  life.  That  they  should  go  and  inform  those  who  had  given  a 
convict  employment  of  the  fact  of  his  having  been  convicted  was 
simply  to  drive  the  convict  into  crime  again.  He  was  aware  that 
this  was  done  in  many  parts  of  the  country,  but  he  for  his  part 
thought  that  it  should  not  be.  It  was  an  unnecessary,  an  officious, 
and  a  cruel  act  ;  and  the  result  of  it  was  that  once  a  man  was  con- 
victed he  was  branded  for  the  rest  of  his   life,  and  a  return  to 

(208) 


WHY    A   DEFENCE.  '  137 

honesty  was  made  most  difficult  for  him." — Times,  for  April  23rd, 
1880. 

No  doubt  it  is  part  of  the  punishment  <>i'  a  criminal  that  lie  can 
never  escape  from  his  misdeeds  ;  but  nevertheless,  to  unduly  pro- 
claim them  is  malicious  and  uncharitable.  Yet  it  is  difficult  to  see 
how  any  change  can  be  made  in  the  law  in  this  respect.  No  law- 
can  be  framed  which  cannot  be  made  to  press  harshlj  on  individuals 
under  exceptionable  circumstances  and  in  the  hands  of  uncharitable 
persons.  And  as  a  rule  the  strictness  with  which  a  defendant  is 
made  to  brave  [*180j  his  plea  of  justification,  is  a  sufficient  pro- 
tection to  a  plaintiff  ;  for  if  a  man  is  really  malicious  in  making  a 
statement,  he  is  almost  sure  to  go  beyond  the  truth,  and  say  too 
much. 

In  Rome  the  truth  of  the  libel  was  a  defence  both  to  criminal  and 
to  civil  proceedings.  "  Eum  qui  nocentem  infamavit  non  esse 
bonum  sequum  ob  earn  rem  condemnari." — Pauli  Sent.  V.  4.  So  in 
Horace,  Sat.  II.  1,  83 — 5. 

' '  bona  [carmina]  si  quis 
Judice  condiderit  laudatur  Caesare  ;  si  quis 
Opprobriis  diguum  laceraverit,  integer  ipse." 


(209) 


CHAPTER  VIII. 

[*181]  PRIVILEGED  OCCASIONS.  ' 

It  is  a  defence  to  an  action  of  libel  or  slander  to  prove  that  the  cir- 
cumstances under  which  the  defamatory  words  were  written  or 
spoken  were  such  as  to  make  it  right  that  the  defendant  should 
plainly  state  what  he  honestly  believed  to  be  the  plaintiff's  character, 
and  speak  his  mind  fully  and  freely  concerning  him.  In  such  a  case, 
the  occasion  is  said  to  he  privileged,  and  though  the  statement  may 
now  be  proved  or  admitted  to  be  false,  still  its  publication  on  such 
privileged  occasion  is  excused  for  the  sake  of  common  convenience, 
and  in  the  interests  of  society  at  large. 

Illustrations. 

I  am  called  as  a  witness,  and  sworn  to  speak  the  truth,  the  whole  truth,  and 
nothing  but  the  truth.  I  may  do  so  without  fear  of  any  legal  liability,  even 
though  J.  am  thus  compelled  to  defame  my  neighbour. 

I  am  asked  for  a  character  of  my  late  servant  by  one  to  whom  he  has  applied 
for  a  situation.  I  may  state  in  reply  all  I  know  against  him  without  being 
liable  to  an  action  ;  provided  I  do  so  honestly  and  truthfully  to  the  best  of  my 
ability. 

A  friend  recently  come  to  live  in  the  town  privately  asks  my  opinion  as  to 
such  and  such  a  lawyer,  doctor,  tradesman,  workman,  &c.  I  may  tell  him  in 
answer  all  I  know  concerning  each  of  them  ;  both  as  to  their  skill  and  ability  in 
their  business,  and  also  as  to  their  private  character,  their  integrity,  or  im- 
morality ;  provided  I  do  not  maliciously  exaggerate,  or  deliberately  mis-state, 
the  facts. 

Privileged  occasions  are  of  two  kinds  : — 
(i)  Those  absolutely  privileged, 
(ii)  Those  in  which  the  privilege  is  but  qualified. 

[*182]  In  the  first  class  of  cases  it  is  so  much  to  the  public  interest 
that  the  defendant  should  speak  out  his  mind  fully  and  fearlessly, 
that  all  actions  in  respect  of  words  spoken  thereon  are  absolutely 
forbidden,  even 'though  it  be  alleged  that  the  words  were  spoken 
falsely,  knowingly,  and  with  express  malice.  This  is  confined  to 
cases  where  the  public  service,  or  the  clue  administration  of  justice, 
requires  complete  immunity,  e.  g.,  words  spoken  in  Parliament  ; 
reports  of  military  officers  on  military  matters  to  their  military 
superiors  ;  everything  said  by  a  judge  on  the  bench,  by  a  witness  in 
the  box,  &c,  &c.  In  all  these  cases  the  privilege  afforded  by  the 
occasion  is  an  absolute  bar  to  any  action. 

In  less  important  matters,  however,  the  interests  of  the  public  do 
not  demand  that  the  speaker  should  be  freed  from  all  responsibility, 
but  merely  require  that  he  should  be  protected  so  far  as  he  is  speak- 
ing honestly  for  the  common  good  ;  in  these  cases  the  privilege  is 
said  not  to  be  absolute  but    qualified  only  ;    and  the  plaintiff  will 

(210) 


DUTY    OF    JUDGE.  139 

recover  damagesin  spite  of  the  privilege,  if  lie  can  prove  that  the 
words  were  not  used  bond  fide  but  that  the  defendant  availed  him- 
self of  the  privileged  occasion  wilfully  and  knowingly  to  defame 
the  plaintiff. 

Illustrations 

If  a  witness  in  the  box  volunteers  a  defamatory  remark,  quite  irrelevant  to 
the  cause  in  which  he  is  sworn,  with  a  view  of  gratifying  his  own  vanity,  and 
of  injuring  the  professional  reputation  of  the  plaintiff,  no  action  lies  against 
such  witness  ;  the  words  are  still  absolutely  privileged  ;  for  they  were  spoken 
in  the  box. 

Seaman  v.  Ketherclift,  1  C.  P.  D.  540  ;  45  L.  J..C.  P.  798;  24  W.  R. 

88  1  ;  34  L.  T.  878  ;  2  C.  P.  D.  53  ;  46  L.  J.  C.  P.  128  ;  25   W.   R. 

159  ;  35  L.  T.  784. 

But  if  I  maliciously  give  a  good  servant  a  bad  character  in  order   to  prevent 

her  "bettering  herself,"  and  so  to  compel  her  to  return  to  my  own  service,  the 

case  is  thereby  taken  out  of  the  privilege,  and  the  servant  may  recover  heavy 

damages. 

Jackson  v.    Hobperton,   16  C.   B.   (N.  S.)  829 ;  12  W.  R.  913 ;    10 
L.  T.  529. 

In  Roman  law  an  intention  to  injure  the,  plaintiff  was  essential  to 
the  action  for  injuria,  (D.  47.  10.  3.  3  &  4.)  Hence  they  never  pre- 
[*  183]  sumed  malice  ;  the  plaintiff  had  to  prove  that  the  defend- 
ant expressly  intended  to  impair  his  good  name.  Thus,  if  an  astrol- 
oger or  soothsayer  in  the  bona  fide  practice  of  his  art,  denounces  A. 
as  a  thief  when' he  is  an  honest  man,  A.  has  no  action  :  for  the 
astrologer  only  committed  an  honest  mistake.  But  it  would  be 
otherwise  if  the  soothsayer  did  not  really  believe  in  his  art,  but  pre- 
tended, after  some  jugglery,  to  arrive  at  A.'sname  from  motives  of 
private  enmity.  (D.  47.  10.  15.  13.)  That  being  so,  it  was  unneces- 
sary for  the  Romans  to  have  any  law  as  to  qualified  privilege  ; 
unless  there  was  some  evidence  of  malice*  the  plaintiff  was  in  every 
case  non-suited.  But  neither  did  they  allow  any  absolute  privilege  ; 
on  express  malice  proved  the  plaintiff  recovered.  Even  the  fact 
that  the  libel  was  contained  in  a  petition  sent  to  the  Emperor  was 
no  protection.  (D.  47.  10.  15.  29.)  If  a  prefect  or  other  official 
in  the  course  of  his  duty  charged  a  man  with  crime,  he  was  not 
liable  to  an  action  if  he  did  so  in  the  belief  that  the  charge  was 
true,  and  without  any  malicious  intention  of  publicly  defaming  the 
man  ;  but  if,  in  a  sudden  quarrel,  he  made  the  charge  in  the  heat 
of  the  moment,  and  without  any  ground  for  the  accusation,  then  he 
would  be  liable  to  an  action  when  his  term  of  office  had  expired, 
unless  the  Statute  of  Limitations  would  help  him.  (Rescript  to 
Victorinus,  A.D.  290  ;  Krueger's  Codex,  ed.  1877,  p.  855.)  Two 
adversaries  in  litigation  were  of  course  allowed  great  latitude  ;  a 
certain  amount  of  mutual  defamation  being  essential  to  the  conduct 
of  the  case,  and  so  not  malicious  :  but  even  here  moderation  had  to 
be  observed.  (Pauli  Sent.  V.  iv.  15.)  The  Roman  plan  had  at 
least  the  merit  of  simplicity. 

Whether  the  communication  is,  or  is  not,  privileged  by  reason  of 
the  occasion,  is  a  question  for  the  judge  alone,  where  there  is  no  dis- 
pute as  to  the  circumstances  under  which  it  was  made.  (State  v.  Grif- 
fith, L.  R.  2  P.  C.  420  ;  6  Moore,  P.  C.  C.  N.  S.  18  j   20  L.  T.  197.) 

(211) 


140  PRIVILEGED    OCCASIONS. 

If  there  be  any  doubt  as  to  these  circumstances,  the  jury  must  find 
what  the  circumstances  in  fact  were,  or  what  the  defendant  honestly 
believed  them  to  be,  if  that  be  the  point  to  be  determined;  and  then, 
on  their  findings,  the  judge  decides  whether  the  occasion  was  privi- 
leged or  not,  If  the  occasion  was  not  privileged,  and  the  words  are 
defamatory  and  false,  the  judge  will  direct  a  verdict  for  the  plaintiff. 
If  the  [*  184]  occasion  was  absolutely  privileged,  judgment  will  at 
once  be  given  for  the  defendant.  If,  however,  the  judge  decides 
that  the  occasion  was  one  of  qualified  privilege  only,  the  plaintiff 
must  then,  if  lie  can,  give  evidence  of  actual  malice  on  the  part  of 
the  defendant.  If  he  gives  no  such  evidence,  it  is  the  duty  of  the 
judge  to  nonsuit  him,  or  to  direct  a  verdict  for  the  defendant.  If 
he  does  give  any  evidence  of  malice  sufficient  to  go  to  the  jury,  then 
it  is  a  question  for  the  jury  whether  or  no  the  defendant  was  actu- 
ated by  malicious  motives  in  Avriting  or  speaking  the  defamatory 
words.     (See  c.  IX,  Malice,  post,  p.  209.) 


•     PART   I. 

OCCASIONS    ABSOLUTELY    PRIVILEGED. 

In  certain  cases  it  is  "  advantageous  for  the  public  interest  that 
persons  should  not  in  any  way  be  fettered  in  their  statements,"  but 
should  speak  out  the  whole  truth  freely  and  fearlessly.  In  these 
cases  the  privilege  is  absolute,  and  no  action  lies  for  words  spoken 
on  such  an  occasion  ;  the  plaintiff  cannot  be  heard  to  say  that  the 
defendant  did  not  act  under  the  privilege,  that  he  did  not  intend 
honestly  to  discharge  a  duty,  but  maliciously  availed  himself  of  the 
privileged  occasion  to  injure  the  plaintiff's  reputation. 

There  are  not  many  such  cases,  nor  is  it  desirable  that  there 
should  be  many.  The  Courts  refuse  to  extend  their  number.  {Ste- 
vens v.  Sampson,  5  Ex.  D.  53  ;  49  L.  J.  [*  185]  Q.  13.  120  ;  28  W. 
R.  87  ;  41  L.  T.  782.)     They  may  be  grouped  under  three  heads  : — 

(i)  Parliamentary  proceedings, 
(ii)  Judicial  proceedings, 
(iii)  Naval  and  military  affairs,  &c. 

"  I  take  this  to  be  a  rule  of  law  not  founded,  as  is  the  protection 
in  other  cases  of  privileged  statements,  on  the  absence  of  malice  in 
the  party  sued,  but  founded  on  public  policy,  which  requires  that  a 
judge,  in  dealing  with  the  matter  before  him,  a  party  in  preferring 
or  resisting  a  legal  proceeding,  and  a  witness  in  giving  evidence, 
oral  or  written,  in  a  court  of  justice,  shall  do  so  with  his  mind  unin- 
fluenced by  the  fear  of  an  action  for  defamation  or  a  prosecution 
for  libel."  *  (Per  Pigott,  C.  B.,  in  Kennedy  v.  Billiard,  10  Ir.  C.  L. 
Rep.  at  p.  209,  cited  with  approval  by  Brett,  M.  R.,  in  Munster  v. 
Lamb  (C.  A.),  11  Q.  B.  D.  at  pp.  604,  605.) 

(i.)  Parliamentary  Proceedings. 

No  member  of  either  House  of  Parliament  is  in  any  way  responsi- 

(212) 


JUDICIAL    PROCEEDINGS.  141 

ble  in  a  court  of  justice  for  anything  said  in  the  House.  (BUI  of 
Rights,  1  Will.  &  Mary,  st.  2,  c.  2.)  And  no  indictment  will  lie  for 
an  alleged  conspiracy  by  members  of  cither  House  to  make  speeches 
defamatory  of  the  plaintiff.  (Ex  parte  Wason,  L.  R.  4  Q.  B.  573; 
38  L.  J.  Q.  B.  302;  40  L.  J.  (M.  C.)  168;   17  W.  R.  881.) 

But  this  privilege  does  not  extend  outside  the  walls  of  the 
House. 

Hence  at  common  law,  even  if  the  whole  House  ordered  the  pub- 
lication of  parliaTnentary  reports  and  papers,  no  privilege  attached. 
(R.  v.  Williams  (1686),  2  Shower,  471;  Comb.  18  (see,  however,  the 
comments  on  this  case  in  Li.  v.  Wright  (1799),  8  T.  R.  293);  /Stock- 
dale  v.  Hansard  (1839),  2  Moo.  &  Rob.  9;  7  C.  &  P.  731;  9  A.  & 
E.  1—243;  2  P.  &  D.  1;  3  Jur.  905;  8  Dowl.  148,  522.)  But  now, 
by  stat.  3  &  4  Vict.  c.  9,  all  reports,  papers,  [*  186]  votes  and  pro- 
ceedings ordered  to  be  published  by  either  House  of  Parliament,  are 
made  absolutely  privileged,  and  all  proceedings  at  law,  civil  or 
criminal,  will  be  stayed  at  once  on  the  production  of  a  certificate 
that  they  were  published  by  order  of  either  House.  (See  the  Act 
in  Appendix.)  The  only  case  under  the  Act  is  the  second  case  of 
Stockdale  v.  Hansard  (1840),  11  A.  &  E.  253,  297. 

A  petition  to  Parliament  is  absolutely  privileged,  although  it  con- 
tain false  and  defamatory  statements.  (Lake  v.  King,  1  Saund. 
131;  1  Lev.  240;  1  Mod.  58;  Sid.  414.)  So  is  a  petition  to  a  com- 
mittee of  either  House.  (See  Kane  v.  Mulvany,  Ir.  R.  2  C.  L.  402.) 
But  a  publication  of  such  a  petition  to  others  not  members  of  the 
House  is  of  course  not  privileged. 

Illustrations. 

If  a  member  of  either  House  of  Parliament  publishes  to  the  world  the  speech 
he  delivered  in  his  place  in  the  House,  he  will  be  liable  to  an  action  as  any 
private  individual  would  be. 

R.  v.  Lord  Abingdon,  1  Esp.  226. 
R.  v.  Creevey,  1  M.  &  S.  273. 
Though  if  a  member  of  the  House  of  Commons  merely  printed  his  speech  for 
private  circulation  among  his  constituents,  it  will  be  conditionally  privileged, 
i.  e.  if  there  be  no  malicious  intent  to  injure  the  plaintiff. 

Per  Lord  Campbell  in  Davison  v.  Duncan,  7  E.  &  B.  233  ;  26  L.  J. 

Q.  B.  107. 
Per  Cockburn,  C.  J.,  in  Wason  v.  Walter,  L.  R.  4  Q.  B.  95  ;  8  B.  & 
S.  730  ;  38  L.  J.  Q.  B.  42  ;  17  W.  It.  169  ;  19  L.  T.  416. 
Evidence   given  before  a  Select  Committee  of  the  House  of  Commons  is 
privileged. 

Goffin  v.  Donnelly,  6  Q.  B.  D.  307;  50  L.  J.  Q.  B.  303  ;  29  W.  R. 
440  ;  44  L.  T.  141;  45  J.  P.  439. 
But  a  letter  written  to  the  Privy  Council,  touching  the  conduct  of  one  of 
their  officers,  is  not  absolutely  privileged  ;  it  is  open  to  the  plaintiff  to  prove 
express  malice  if  he  can. 

Proctor  v.  Webster,   16  Q.  B.  D.  112;  55  L.  J.  Q.  B.  150;  53  L.  T. 
765. 
Reports  in  the  newspapers  of  parliamentary  proceedings  are  conditionally, 
not  absolutely,  privileged. 

See  post,  pp.  263 — 5. 

[*187]  (ii.)  Judicial  Proceedings. 

No  action  will  lie  for  defamatory  statements  made  or  sworn  in 

(213) 


142  ABSOLUTE    PRIVILEGE. 

the  course  of  a  judicial  proceeding  before  any  court  of  competent 
jurisdiction.  Everything  that  a  judge  says  on  the  bench,  or  a  -wit- 
ness in  the  box,  or  counsel  in  arguing,  is  absolutely  privileged,  so 
long  as  it  is  in  anyway  connected  with  the  inquiry.  So  are  all 
documents  necessary  to  the  conduct  of  the  cause,  such  as  pleadings, 
affidavits,  and  instructions  to  counsel.  This  immunity  rests  on 
obvious  grounds  of  public  policy  and  convenience. 

Judy  as. 

A  judge  of  a  superior  Court  has  an  absolute  immunity,  and  no 
action  can  be  maintained  against  him,  even  though  it  be  alleged 
that  he  spoke  maliciously?  knowing  his  words  to  be  false,  and  also 
that  his  words  were  irrelevant  to  the  matter  in.  issue  before  him, 
and  wholly  unwarranted  by  the  evidence.  It  is  essential  to  the 
highest  interests  of  public  policy  to  secure  the  free  and  fearless 
discharge  of  high  judicial  functions.      [JBloyd  v.  Barker,  1 2  Rep.  24-.) 

The  judge  of  an  inferior  court  of  record  enjoys  the  same  immunity 
in  this  respect  as  the  judge  of  a  superior  Court,  so  long  as  he  has 
jurisdiction  over  the  matter  before  him.  For  any  act  done  in  any 
proceeding  in  which  he  either  knows,  or  ought  to  know,  that  he  is 
without  jurisdiction,  he  is  liable  as  an  ordinary  subject.  {Houlden 
v.  Smith,  14  Q.  B.  841  ;  Colder  v.  Ilalkct,  3  Moo.  P.  C.  C.  28'.) 
And  so  he  would  be  for  words  spoken  after  the  business  of  the 
court  is'over.  {Paris  v.  Levy,  9  C.  B.  N.  S.  342  ;  30  L.  J.  C.  P. 
22  ;  7  Jur.  K  S.  289  ;  9  W.  R  71  ;  8  L.  T.  324.)  A  justice  of 
the  peace  enjoys  an  equal  immunity.  An  action  will  lie  against 
him  for  defamatory  words  spoken  [*188j  maliciously  and  without 
reasonable  or  probable  cause  if  they  do  not  arise  out  of  any  matter 
properly  before  him.  (See  Kirby  v.  Simpson,  10  Exch.  358  ;  Gelen 
v.  Hall,  2  II.  &  K  379.)  But  if  the  conduct  of  the  plaintiff  be  a 
matter  in  any  way  relevant  to  the  inquiry,  and  the  proceedings  are 
within  the  jurisdiction  of  the  magistrate,  he  may  express  his  opinion 
of  such  conduct  with  the  utmost  freedom,  and  no  action  will  lie. 
The  dicta  of  Lord  Denman,  C.  J.,  in  Kendillon  v.  MaUby,  Car.  &  M. 
402  ;  2  Moo.  &  Rob.  438,  implying  that  an  action  would  lie  against 
a  magistrate  for  words  uttered  in  the  course  of  his  duty,  on  proof 
both  of  malice  and  of  the  absence  of  all  reasonable  and  probable 
cause,  are  expressly  overruled  bv  the  Court  of  Appeal  in  Munstcr  v. 
Lamb,  11  Q.  B.  D.  608  ;  52  L.  J.  Q.  B.  720  ;  32  W.  R.  243  ;  49  L. 
T.  252  ;  47   J.  P.  805. 

Elustrations. 

No  action  will  lie  against  a  judge  of  one  of  the  superior  Courts  for  any  judi- 
cial act,  though  it  be  alleged  to  have  been  done  maliciously  and  corruptly. 
Fray  v.  Blackburn,  3  B.  &  S.  576. 
See  Floyd  v.  Barker.  12  Rep  24. 

Groenvelt  v.  Burwell,  1  Ld.  Raym.  454,  468  ;  12  Mod.  388. 
Dicas  v.  Lord  Brougham,  6  C.  &  P.  249  ;  1  M.  &  R.  309. 
Taaffe  v.  Dowries,  3  Moo.  P.  C.  C.  36.  n. 

Kemp  v.  Neville,  10  C.  B.  N.  S.  523  ;  31  L.  J.  C.  P.  158  ;  4L.  T.  640. 
No  action  lies  against  a  judge  for  unjustly  censuring  and  denouncing  a  counsel 
then  engaged  in  the  cause  before  him,  even  although  it  be  alleged  that  it  was 
done  from  motives  of  private  malice. 

Miller  v.  Hope,  2  Shaw,  Sc.  App.  Cas.  125. 
(214) 


JUDICIAL    PROCEEDINGS.  143 

A  County  Court  judge,  while  sitting  in  Court  and  trying  an  action  in  which 
the  plaintiff  was  defendant,  said  to  him  :  "You  area  harpy,  preying  on  the 
vitals  of  t ho  poor."  The  plaintiff  was  an  accountant  and  scrivener.  Held, 
that  no  action  lay  for  words  so  spoken  by  the  defendant  in  his  capacity  as 
County  Court  judge,  although  they  were  alleged  to  have  been  spoken  falsely 
and  maliciously,  and  without  any  reasonable  or  probable  cause  or  any  founda- 
tion whatever,  and  to  have  been  "wholly  irrelevant  to  the  case  before  bim. 

Scott  v.  Stansfield,  L.  R.  3  Ex.  220;  37  L.  J.  Ex.  L55 ;  Ki  W.  R. 
911  ;  18  L.  T.  572. 
No  action  lies  against  a  coroner  for  anything  he  says  in  his  address  to  the 
jury  impanelled  before  him,  however  defamatory,  false,  or  malicious  it  may  he  ; 
unless  the  plaintiff  can  prove  that  the  statement  was  wholly  irrelevant  to  the 
P189]  inquisition,  and  not  warranted  by  the  occasion,  the  coroner's  court  being 
'"'  a  court  of  record  of  very  high  authority." 

Thomas  v.  Ohurton,  2  B.  &  S.  475  ;    31  L.  J.  Q.  B.  139  ;   8  Jur.  N. 

S.  795. 
See  also  Yates  v.  Lansing,  5  Johns.  283;  9  Johns.  395  (American). 
A  chairman  of   quarter  sessions  may  denounce  the  grand  jury  as  a  "sedi- 
tious, scandalous,  corrupt,  and  perjured  jury." 
R.  v.  Skinner,  Lofft,  55. 
Tha  judgment  of   a  court-martial,  containing  defamatory  matter,  is  abso- 
lutely privileged,  though  it  is  not  a  court  of  record. 

,1,  kyll  v.  Sir  John  Moore,  2  B.  &  P.  N.  R.  341  ;  6  Esp.  63. 
Home  v.  Bentinek,  2  B.  &  B.  130  ;  4  Moore,  563. 
Oliver  v.  Bentinek,  3  Taunt.  456. 
A  magistrate  commented  severely  on  the  conduct  of  a  policeman  which  came 
under  his  judicial  notice,  and  in  consequence  the  policeman  was  dismissed  from 
the  force.     Held,  that  no  action  lay. 

Rendition  v.  Maltby,  2  M.  &  Rob.  438  ;  Car.  &  Mar.  402. 
See  also  Allardice  v.  Robertson,  1  Dow,  N.  S.  514;  1  Dow  &  Clark, 
495  ;  6  Shaw  &  Dun.  242  ;  7  Shaw  &  Dun.  691  ;  4  Wil.  <k  Shaw, 
App.  Cas.  102. 
Pratt  v.  Gardner,  2  Gushing  (Massachusetts),  63. 
But  a  magistrate's  clerk  has  no  right  to  make  any  observation  on  the  conduct 
of  the  parties  before  the  Court ;  and  no  such  observation  will  be  privileged. 

Hchqal  v.  Hiqhley,  3  Bing.  N.  C.  950  ;  5  Scott,  154  ;  3  Hodges,  158  ; 
8  C.  &  P.  444. 

Counsel,  <bc. 

ISTo  action  will  lie  against  a  barrister  for  defamatory  words 
spoken  as  counsel  in  the  course  of  any  judicial  proceeding  with 
reference  thereto,  even  though  they  were  unnecessary  to  support 
the  case  of  his  client,  and  were  uttered  without  any  justification  or 
excuse,  and  from  personal  ill-will  or  anger  towards  the  plaintiff 
arising  from  some  previously  existing  cause,  and  are  irrelevant  to 
every  question  of  fact  which  is  in  issue  before  the  tribunal.  (Mun- 
ster  v.  Lamb  (C.  A.),  11  Q.  B.  D.  588  ;  52  L.  J.  Q.  B.  726  ;  32  W. 
R  243  ;   49  L.  T.  252  ;  47  J.  P.  805.) 

This  decision  gives  to  an  advocate  the  same  absolute  immunity 
as  is  enjoyed  by  a  judge  of  a  Superior  Court.  The  previous  cases 
had  not  gone  so  far.  In  Brook  v.  Sir  Henry  Montague  (1606), 
Cro.  Jac!T  90,  the  Court  decided  that  "  counsel  in  law  retained  hath 
a  privilege  to  enforce  anything  which  is  informed  him  by  his 
client,  and  to  give  it  in  evidence,  being  pertinent  to  the  matter  in 
question,  and  not  to  [*190]  examine  whether  it  be  true  or  false  ;  but 
it  is  at  the  peril  of  him  who  informs  him."     But  in  Wood  v.  Gun- 

(215) 


144  ABSOLUTE    PRIVILEGE. 

ston,  Styles,  402,  Glyn,  C.  J.,  pays,  "  It  is  the  duty  of  a  counsellor 
to  speak  for  his  client,  and  it  shall  be  intended  to  be  spoken  accord- 
ing to  his  client's  instructions."  And  in  Flint  v.  Pike,  4  B.  &  C. 
473,  Bayley,  J.,  says,  "The  law  presumes  that  lie  acts  in  discharge 
of  his  duty,  and  in  pursuance  of  his  instructions."  And  in  Butt, 
Q.  C.  v.  Jackson,  10  Ir.  L.  R.  120/  the  Court  expressly  decided 
that  instructions  to  -counsel  are  not  the  test  by  which  to  try  whether 
or  not  the  line  of  duty  has  been  passed.  Hence  the  Avords  are  still 
absolutely  privileged,  although  counsel  may  have  exceeded  his 
instructions.  (See  also  Hodgson  v.  Scarlett,  1  B.  &  Aid.  232  ;  Holt, 
N.  P.  621  ;  Needham  v.  Bowling,  15  L.  J.  C.  P.  9  ;  B.  pros.  Arm- 
strong, Q.  C.  v.  Kiernan,  7  Cox,  C.  C.  6  ;  5  Ir.  C.  L.  R.  171  ;  and 
Taylor  v.  Swinton  (1824),  2  Shaw's  Scotch  App.  Cas.  245.)  But 
the  recent  decision  of  the  Court  of  Appeal  removes  all  limitations 
whatever  on  the  absolute  privilege  of  an  advocate  for  all  words 
uttered  in  the  course  of  his  duty.  The  rule  is  made  so  wide  (as 
Brett,  M.  R.,  points  out,  11  Q.  B.  D.  604),  not  to  protect  counsel 
who  deliberately  and  maliciously  slander  others,  but  in  order  that 
innocent  counsel  who  act  bond  fide  may  not  be  "  unrighteously 
harassed  with  suits." 

An  attorney  acting  as  an  advocate  in  a  county  court  or  a  police 
court  enjoys  the  same  immunity  as  counsel.  (Mackay  v.  Ford,  5 
H.  &  K  792  ;  29  L.  J.  Ex.  404  ;  6  Jur.  N.  S.  587  ;  6  W.  R.  586  ; 
Minister  v.  Lamb,  ubi  supra.)  So  with  a  proctor  in  an  ecclesias- 
tical court.  (Higginson  v.  Flaherty,  4  Ir.  C.  L.  R.  125.)  The 
party  himself,  because  of  his  ignorance  of  the  proper  mode  of 
conducting  a  case,  is  alloAved  even  greater  latitude.  (Per  Holroyd, 
J.,  in  Hodgson  v.  Scarlett,  1  B.  &  Aid.  244.)  Any  observation  made 
by  one  of  the  jury  during  the  trial  is  equally  privileged,  provided 
it  is  pertinent  to  the  inquiry.  (B.  v.  S/cimier,  Lofft,  55.)  And  so 
is  any  presentment  by  a  grand  jury.  (Little  v.  Pomeroy,  Ir.  R.  7 
C.  L.  50.) 

Witnesses. 

A  witness  in  the  box  is  absolutely  privileged  in  answering  all  the 
questions  asked  him  by  the  counsel  on  either  side  ;  [*19l]  and  even 
if  he  volunteers  an  observation  (a  practice  much  to  be  discouraged), 
still  if  it  has  reference  to  the  matter  in  issue,  or  fairly  arises  out  of 
any  question  asked  him  by  counsel,  though  only  going  to  his  credit, 
such  observation  will  also  be  privileged.  (Seaman  v.  Netherclift, 
1  C.  P.  D.  540  ;  2  C.  P.  D.  53  ;  46  L.  J.  C.  P.  12S.)  But  a  remark 
made  by  a  witness  in  the  box,  wholly  irrelevant  to  the  matter  of 
inquiry,  uncalled  for  by  any  question  of  counsel,  and  introduced 
by  the  witness  maliciously  for  his  own  purposes,  wordl  not  be 
privileged,  and  would  also  probably  be  a  contempt  of  court.  So, 
of  course,  an  observation  made  by  a  witness  while  waiting  about 
the  Court,  before  or  after  he  has  given  his  evidence,  is  not  priv- 
ileged. (Trotman  v.  Dunn,  4  Camp.  211  ;  Lynam  v.  Gowing, 
6  L.  R.  Ir.  259.)     Nor  is  a  private  letter  written  to  the  judge  to 

(216) 


WITNESSES,    AFFIDAVITS,    PLEADJNGS,    FTC  145 

influence  his  decision.  (Govld  v.  Hume,  3  C.  &  I*.  625.)  Such  a 
letter  is  strictly  a  contempt  of  court. 

Affidavits,  Pleadings,  etc. 

Every  affidavit  sworn  in  the  course  of  a  judicial  proceeding 
before  a  court  of  competent  jurisdiction  is  absolutely  privileged, 

and  no  action  lies  therefor,  however  false  and  malicious  may  be  the 
statements  made  therein,  (Bevis  v.  Smith,  L8  ( !.  B.  L26  ;  25  L.  .1. 
('.  P.  195  ;  Henderson  v.  Broomhead,  4  IT.  &  N.  509  ;  28  L.  J.  Ex. 
360  ;  5  Jur.  N.  S.  1175.)  So  is  any  indorsement,  on  a  writ.  {Lord 
Beauchamps  v.  Sir  B.  Croft,  Dyer,  285  a.)  So  are  all  pleadings 
and  instructions  to  counsel.  (See  Bank  of  British  X<>,ih  America 
v.  Strong,  1  App.  ('as.  307  ;  34  L.  T.  027.)  So  are  articles  of  the 
peace  exhibited  against  the  plaintiff.  (Cutler  v.  Dixon,  1  Rep.  14.) 
The  only  exception  is  where  an  affidavit  is  sworn  recklessly  and 
maliciously  before  a  Court  that  has  no  jurisdiction  in  the  matter, 
and  no  power  to  entertain  the  proceeding.  (Buckley  v.  Wood,  4 
Rep.  14  ;  Cro.  Eliz.  230  ;  B.  v.  [*192]  Salisbury,  1  Ld.  Ravm.  341  ; 
Lewis  v.  Levy,  E.  B.  &  E.  554  ;  27  L.  J.  Q.  B.  282  ;  4  Jur.  N.  S. 
970.)  In  all  other  cases  the  plaintiff's  only  remedy  is  to  indict  the 
deponent  for  perjury,  if  he  dare.  (Doyle  v.  CBoherty,  Car.  &  M. 
418  ;  Astley  v.  Ybunge,  2  Burr.  807.)  The  Court  will,  however, 
sometimes  order  scandalous  matter  in  such  an  affidavit  to  be 
expunged.  (Christie  v.  Christie,  L.  R.  8  Ch.  490  ;  42  L.  J.  Ch. 
544  ;  "21  W.  R.  493  ;  28  L.  T.  607.)  But,  even  for  matter  thus 
expunged,  no  action  can  be  brought.  (Kennedy  v.  Ililliard,  10  Ir. 
C.  L.  R.  195  ;  1  L.  T.  578.) 

In  short,  "  neither  party,  witness,  counsel,  jury  or  judge  can  be 
put  to  answer  civilly  or  criminally  for  tcords  spoken  in  office.''''  (Per 
Lord  Mansfield  in  B.  v.  Skinner,  Lofft,  56.) 

Illustrations. 

A  woman  was  charged  before  a  court  of  petty  sessions  with  administering 
drugs  to  the  inmates  of  the  plaintiff's  house  in  order  to  facilitate  the  commis- 
sion" of  a  burglary  there.  The  plaintiff  was  the  prosecutor,  and  the  defendant, 
who  was  a  solicitor,  appeared  for  the  defence  of  the  woman.  It  was  admitted 
that  she  had  been  at  the  plaintiff's  house  ou  the  evening  before  the  burglary  ; 
and  there  was  some  evidence,  though  very  slight,  that  a  narcotic  drug  had 
been  administered  to  the  inmates  of  the  plaintiff's  house  on  that  evening. 
During  the  proceedings  before  the  magistrates  the  defendant,  acting  as  advo- 
cate for  *hc  woman,  suggested  that  the  plaintiff  might  be  keeping  drugs  at  his 
house  for  immoral  or  criminal  purposes.  There  was  no  evidence  called  or 
tendered  that  the  plaintiff  kept  any  drugs  in  his  house  at  all.  Held,  that  no 
action  would  lie  against  the  defendant  for  these  words. 

Mumter  v.  Lamb  (C.   A.),  11  Q.  B.  D.  588 ;    52  L.  J.  Q.  B.  726  ; 
32  W.  R.  243  ;  49  L.  T.  252  ;  47  J.  P.  805. 

Defendant,  an  expert  in  handwriting,  gave  evidence  in  the  Probate  Court  in 
the  trial  of  Barnes  v.  May,  that,  in  his  opinion,  the  signature  to  the  will  in 
question  was  a  forgery.  The  jury  found  in  favour  of  the  will,  and  the  presiding 
judge  made  some  very  disparaging  remarks  on  defendant's  evidence.  Soon 
afterwards  defendant  was  called  as  a  witness  in  favour  of  the  genuineness  of 
another  document,  on  a  charge  of  forgery  before  a  magistrate.  In  cross- 
examination  he  was  asked  whether  he  had  given  evidence  in  the  suit  of  Davies 
10  lib.  &  slan.  (217) 


146  ABSOLUTE    PRIVILEGE. 

v.  May,  and  whether  he  had  read  the  judge's  remarks  on  his  evidence.  He 
answered,  "  Yes."  Counsel  asked  no  more  questions,  and  defendant  insisted 
on  adding,  though  told  by  the  magistrate  not  to  make  any  further  statement  as 
to  Darken  v.  Map:  "  I  believe  that  will  to  be  a  rank  forgery,  and  shall  believe 
so  to  the  day  of  my  death."  An  action  of  slander  for  these  words  having  been 
brought  by  one  of  the  attesting  witnesses  to  the  will :  held,  that  the  words  were 
[*193]  spoken  by  defendant  as  a  witness,  and  had  reference  to  the  inquiry 
before  the  magistrate,  as  they  intended  to  justify  the  defendant,  whose  credit 
as  a  witness  had  been  impugned  ;  and  the  defendant  was  therefore  absolutely 
privileged. 

Seaman  v.  Netherclift,  1  C.  P.  D.  540  ;  45  L.  J.  C.  P.  798  ;  24  W.  R. 

884  ;  34  L.  T.  878 ;   (C.  A.)  2  C.  P.  D.  53  ;  46  L.  J.  C.  P.  128  ;  25 

W.  R.  159  ;  35  L.  T.  784. 

A  servant  summoned  his  master  before  a  court  of  conscience  for  a  week's 

wages.     The  master  said  :  "  He  has  been  transported  before,  and  ought  to  be 

transported  again,     lie  has  been  robbing  me  of  nine  quartern  loaves  a  week.  " 

Lord  Ellenborough  held  the  remark  absolutely  privileged,  if  the  master  spoke 

them  in  opening  his  defence  to  the  Court ;  but  otherwise   if  he  spoke  them 

while  waiting  about  the  room  and  not  for  the  purpose  of  his  defence. 

Trotman  v.  Dunn,  4  Camp.  221.     [N.  B.— The  latter  part  of  the 

headnote  to  this  case  is  misleading.] 

Plaintiff  made  an  affidavit  in  an  action  he  had  brought  against  defendant  in 

the  King's  Bench.     Defendant  (apparently  conducting  his  own  case)  said  in 

court,  in  answer  to  this  affidavit,  "  It  is  a  false  affidavit,  and  forty  witnesses 

will  swear  to  the  contrary."     Held,  that  no  action  lay  for  these  words. 

Boulton  v.  Chapman  (1640),  Sir  W.  Jones,  431  ;  March,  20,  pi.  45. 
A  charge  of  felony  made  by  the  defendant  wdien  applying  in  due  course  to  a 
justice  of  the  peace  for  a  warrant  to  apprehend  the  plaintiff  on  that  charge  is 
absolutely  privileged. 

Ram  v.  Lamley,  Hutt.  113. 
See  Johnson  v.  Evans,  3  Esp.  32. 
Weston  v.  Dobniet,  Cro.  Jac.  432. 
Dancaster  v.  Hewson,  2  Man.  &  R.  176. 
Defamatory  communications  made  by  witnesses  or  officials  to  a  court-martial, 
or  to  a  court  of  inquiry  instituted  under  articles  of  war,  are  absolutely  privi- 
leged. 

Keighley  v.  Bell,  4  F.  &  F.  763. 

Dawkins  v.  Lord  Hokeby,  L.  R.  8  Q.  B.  255  ;  42  L.  J.  Q.  B.  633  ;  21 
W    R   544  ;  4  F.  ct  F.  806  ;  28  L.  T.  134  ;  L.  R.  7  H.  L.  744  ;  45 
L.  J.  Q.  B.  8  ;  23  W.  R.  931  ;  33  L.  T.  196. 
No  action  lay  for  defamatory  expressions  contained  in  a  bill  in  Chancery. 

Hare  v.  Mellers,  3  Leon.  138  ;  as  explained  by  Pollock,  B.,  16  Q.  B. 
D.  at  p.  113. 
No  action  will  lie  for  defamatory  expressions  against  a  third  party,  contained 
in  an  affidavit  made  and  used  in  the  proceedings  in  a  cause,  though  such  state- 
ments be  false,  to  the  knowdedge  of  the  party  making  them,  and  introduced 
out  of  malice. 

Henderson  v.  Broomhead,  28  L.  J.  Ex.   360  ;  4  H.  &  N.  569  ;  5  Jur. 

N.  S.  1175. 
Astley  v.  Younge,  2  Burr.  807  :  2  Ld.  Kenyon,  536. 
Revis  v.  Smith,  18  C.  B.  126 ;  25  L.  J.  C,  P.  195  ;  2  Jur.  N.  S.  614 
Hartsoek  v.  Reddirk,  6  Blackf .  (Indiana),  255. 
If  application  be  bond  fide  made  to  a  court  which  the  defendant  by  a  pardon- 
able error  honestly  believes  to  have  a  jurisdiction  which  it  has  not,  the  privi- 
lege will  not  be  hist  merely  by  reason  of  this  error. 

Buckley  v.  Wood,  4  Rep.  14  ;  Cro.  Eliz.  230.    • 
M'Oregor-Y.  Thwaites,  3  B.  &.  C.  24 ;  4  D.  &  R.  695. 
Thorn  V.  Blanchard,  5  Johns.  508. 
[*  194]  But  in  other  eases   an  affidavit  made  voluntarily  when  no  cause  is 
pending,  or  made  coram  nonjudice,  is  not  privileged  as  a  judicial  proceeding. 
Maloney  v.  Bartley,  3  Camp.  210. 
(218) 


MILITARY    AND    NAVAL    AFFAIRS.  147 

An  attorney's  bill  of  of  costs  is  in  no  sense  a  judicial  proceeding,  though  de- 
livered under  a  judge's  order,  and  can  claim  no  privilege. 
Brutun  v.  Dowipes,  1  F.  &  F.  068. 
Reports  of  judicial  proceedings  are  not  absolutely  privileged,  however  fair 
and  accurate  they  may  be  ;  the  plaintiff  may  still  prove  that  the  reporter  acted 
maliciously  in  sending  the  report  to  the  newspaper. 

Stevens  v.  Smtjisan,  5  Ex.  1).  53  ;  49  L.  J.  Q.  B.  120  ;  28  W.  R.  HI  ; 

41  L.  T.  782. 
Salmon  v.  Isaac,  20  L.  T.  885. 

(iii.)  Naval  and  Military  affairs,  &c. 

A  similar  immunity,  resting  also  on  obvious  grounds  of  public 
policy,  is  accorded  to  all  reports  made  by  a  military  officer  to  his 
military  superiors  in  the  course  of  his  duty,  and  to  evidence  given 
by  any  military  man  to  a  court  martial  or  other  military  court  of 
inquiry  ;  it  being  essential  to  the  welfare  and  safety  of  the  State 
that  military  discipline  should  be  maintained  without  any  interfer- 
ence by  civil  tribunals.  In  short,  "  all  acts  done  in  the  honest 
exercise  of  military  authority  are  privileged."  The  law  is,  of 
course,  the  same  as  to  the  navy.  Naval  and  military  matters  are 
for  naval  and  military  tribunals  to  determine,  and  not  the  ordinary 
civil  courts.  {Hart  v.  Gumpach,  L.  R.  4  P.  C.439  ;  9  Moore  P.  C. 
C.  N.  S.  241  ;  42  L.  J.  P.  C.  25  ;  21  W.  R.  365  ;  Dawkins  v.  Lord 
Paulet,  L.  R.  5  Q.  B.  94  ;  39  L.  J.  Q.  B.  53  ;  18  W.  R.  336  ;  21  L. 
T.  584  ;  Dawkins  v.  Lord  Rokeby,  L.  R.  7  II.  L.  744  ;  45  L.  J.  Q. 
B.  8;  23  W.  R.  931  ;  33  L.  T.  196  ;  4  F.  &  F.  806.)  A  similarly 
absolute  privilege  extends  to  all  acts  of  State,  and  to  the  official 
notification  thereof  in  the  London  Gazette,  to  all  State  papers,  and 
to  all  advice  given  to  the  Crown  by  its  ministers. 

Illustrations. 

A  military  court  of  inquiry  may  not  be  strictly  a  judicial  tribunal,  but  where 
such  court  has  been  assembled  under  the  orders  of  the  General  Commanding- 
[*  195]  in-Chief  in  conformity  with  the  Queen's  Regulations  for  the  govern- 
ment of  the  army,  a  witness  who  gives  evidence  thereat  stands  in  the  same 
situation  as  a  witness  giving  evidence  before  a  judicial  tribunal,  and  all  state- 
ments made  by  him  thereat,  whether  orally  or  in  writing,  having  reference  to 
the  subject  of  the  inquiry,  are  absolutely  privileged. 

Dawkins  v.  Lord  Rokeby,E.  R.  7  H.  L.  744  ;  45  L.  J.  Q.  B.  8  ;  23  W. 
R.  931  ;  33  L.  T.  196  ;  in  the  Exch.  Ch.  L.  R.  8  Q.  B.  255. 

Goffln  v.  Donnelly,  6  Q.  B.  D.   307  ;  50  L.   J.  Q.  B.   303  ;  29  W.  R. 
440  ;  44  L.  T.  141  ;  45  J.  P.  439. 

And  see  Keighley  v,  Bell,  4  F.  &  F.  763. 

Home  v.  Bentinck,  2  B.  &  B.  130  ;  4  Moore,  563. 
The  defendant,  being  the  plaintiff's  superior  officer,  in  the  course  of  his  mili- 
tary duty  forwarded  to  the  Adjutant-General  certain  letters  written  by  the 
plaintiff,  and  at  the  same  time,  also  in  accordance  with  his  military  duty,  re- 
ported to  the  Commander-in-Chief  on  the  contents  of  such  letters,  using  words 
defamatory  of  the  plaintiff.  It  was  alleged  that  the  defendant  did  so  mali- 
ciously, and  without  any  reasonable,  probable,  or  justifiable  cause,  and  not  in 
the  bond  fide  discharge,  of  his  duty  as  the  plaintiff's  superior  officer.  Held,  on 
demurrer,  by  the  majority  of  the  Court  of  Q.  B.  (Mellor  and  Lush,  JJ.),  that 
such  reports  being  made  in  the  course  of  military  duty  were  absolutely  priv- 
ileged, and  that  the  civil  courts  had  no  jurisdiction  over  such  purely  military 
matters.  Cockburn,  C.  J.,  dissented  On  the  grounds  that  it  never  could  be  the 
duty  of  a  military  officer  falsely,  maliciously,  and  without  reasonable  and  pro- 
bable cause  to  libel  his  fellow-officer,  that  the  courts  of  common  law  have 

(218) 


148  ABSOLUTE    PRIVILEGE. 

jurisdiction  over  all  wilful  and  unjust  abuse  of  military  authority,  and  that  it 
would  not  in  any  way  be  destructive  of  military  discipline  or  of  the  efficiency 
of  the  army  to  submit  questions  of  malicious  oppression  to  the  opinion  of  a 
jury. 

Bawkins  v.  Lord  Paulet,  L.  R.  5  Q.  B.  94  ;  39  L.  J.  Q.  B.  53  ;  18  W. 
R.  336  ;  21  L.  T.  584. 

[N.  B. — There  was  no  appeal  in  this  case.  The  arguments  of  Coekburn,  C.  J., 
deserve  the  most  careful  attention.  In  Dawkins  v.  Lord  Rokeby,  .supra,  the  de- 
cision of  the  House  of  Lords  turned  entirely  on  the  fact  that  the  defendant  was 
a  witness.  Neither  Kelly,  C.  B.,  nor  any  of  the  Law  Lords  (except  perhaps 
Lord  Penzance),  rest  their  judgment  on  the  incompetency  of  a  court  of  common 
law  to  enquire  into  purely  military  matters.  The  Court  of  Exchequer  Chamber 
no  doubt  express  an  opinion  that  "  questions  of  military  discipline  and  military 
dut}r  alone  are  cognisable  only  by  a  military  court,  and  not  by  a  court  of  law." 
(L.  R.  8  Q.  B.  271.)  But  after  referring  to  "  the  eloquent  and  powerful  reason- 
ing of  L.  C.  J.  Coekburn  in  Dawkins  v.  Lord  F.  Paiilet,"  the  Court  goes  on  to 
express  its  satisfaction  that  the  question  "  is  yet  open  to  final  consideration  be- 
fore a  court  of  the  last  resort."  However,  in  a  court  of  first  instance,  at  all 
events,  it  must  now  be  taken  to  be  the  law  that  the  civil  courts  of  common  law 
can  take  no  cognisance  of  purely  military  or  purely  naval  matters  {Sutton  v. 
Johnstone  (1785),  1  T.  R.  493  ;  Grant  v.  Gould  (1792).  2  Hen.  Bl.  69  ;  Barms  v. 
Keppel  (1766),  2  Wils.  314)  ;  but  wherever  the  civil  rights  of  a  person  in  the 
military  or  naval  service  are  affected  by  any  alleged  oppression  or  injustice  at 
the  hands  of  his  superior  officers  or  any  illegal  action  on  the  part  of  a  military 
or  naval  tribunal,  there  the  civil  courts  may  interfere.  Re  Manser gh,  I  B.  &  S. 
400  ;  30  L.  J .  Q.  B.  296  ;   Warden  v.  Bailey,  4  Taunt.  67.] 

[*196]  But  private  letters  written  by  the  commanding  officer  of  the  regiment  to 
his  immediate  superior  on  military  matters,  as  distinct  from  his  official  reports, 
are  not  absolutely  privileged  ;  but  the  question  of  malice  should  be  left  to  the 
jury. 

Dickson  v.  Earl  of  Wilton,  1  F.  &  F.  419. 
Dickson  v.  Cambermere,  3  F.&  F.  527. 

[N.  B. — If  this  be  not  the  distinction,  these  cases  must  be  taken  to  be  over- 
ruled by  the  cases  cited  above.     See  L.  R.  8  Q.  B.  272-3.] 

By  a  general  order  it  was  declared  that  all  unemployed  Indian  officers 
ineligible  for  public  employment  by  reason  of  misconduct  or  physical  or  mental 
inefficiency  should  be  removed  to  the  pension  list.  Under  this  order  the  plaintiff 
was  removed  to  the  pension  list  and  a  notification  of  such  removal  was  published 
in  the  Indian  Gazette.  Held,  on  demurrer,  that  no  action  lay  either  for  the  re- 
moval of  the  plaintiff,  or  for  the  official  publication  of  the  fact  :  although 
special  damage  was  alleged. 

Grant  v.  Secretary  of  State  for  India,  2  C.  P.  D.  445  ;  25  W.  R.  848  ; 

37  L.  T.  188. 
See  Doss  v.  Secretary  of  State  for  India  in  Council,  L.  R.  19  Eq.  509; 

23  W.  R.  773  ;  32  L.  T.  294. 
And  Oliver  v.  Lord  Win.  Bentinck,  3  Taunt.  456. 


(220) 


QUALIFIED    PRIVILEGE.  149 


[*i97]  PART  II. 

QUALIFIED    PRIVILEGE. 

Cases  of  qualified  privilege  may  be  grouped  under  three  heads  : 

I.  Where  circumstances  cast  upon  the  defendant   the    duty  of 

making  a  communication  to  a  certain  other  person,  to  whom 
he  makes  such  communication  in  the  bou&fide  performance 
of  such  duty. 

II.  Where  the  defendant  has  an  interest  in  the   subject  matter 

of  the  communication,  and  the  person  to  whom  he  communi- 
cates it  has  a  corresponding  interest. 

III.  Fair  and  impartial  reports  of  the  proceedings  of  any  Court 
of  Justice  or  of  Parliament. 

In  all  these  instances,  if  the  communication  has  been  made  fairly, 
impartially,  without  exaggeration  or  the  introduction  of  irrelevant 
calumniatory  matter,  the  communication  is  held  privileged.  But  it 
must  be  remembered  that  although  the  occasion  may  be  privileged, 
it  is  not  every  communication  made  on  such  occasion  that  is  privi- 
leged. "  It  is  not  enough  to  have  an  interest  or  duty  in  making  a 
communication  ;  the  interest  or  duty  must  be  shown  to  exist  in 
making  the  communication  complained  of."  (Per  Dowse,  B.,  6  L. 
R.  Ir.  at  p.  269.)  A  communication  which  goes  beyond  the  occa- 
sion "  exceeds  the  privilege." 

[*198]  The  first  two  classes  are  often  stated  as  one,  and  cases 
may  frequently  occur,  which  may  seem  to  fall  in  either  or  both  of 
them.  But  the  distinction  which  I  propose  to  draw  between  them 
is  this  : — 

In  the  first  class  of  cases,  the  defendant  makes  the  communica- 
tion, perhaps  to  an  entire  stranger,  generally  to  one  with  whom  he 
has  had  no  previous  concern  ;  and  he  does  so  because  he  feels  it  to 
be  his  duty  so  to  do.  The  person  to  whom  he  makes  the  communi- 
cation is  under  no  corresponding  obligation  ;  and  generally  has  no 
common  interest  with  the  defendant  in  the  mattei\  The  defendant's 
duty  would  be  the  same  to  whomsoever  the  communication  had  to 
be  made. 

In  the  second  class  of  cases,  however,  there  must  have  bee'n  an 
intimate  relation  or  connexion  already  established  between  the  de- 
fendant and  the  person  to  whom  he  makes  the  communication,  and 
it  is  because  of  this  relationship  that  the  communication  is  privileged. 
The  same  words,  if  uttered  to  another  person  with  whom  the  defend- 
ant had  no  such  connexion,  would  not  be  privileged. 

(221) 


150  QUALIFIED    PRIVILEGE. 

The  third  class  of  cases  might  be  included  in  either  of  the  two 
preceding,  for  it  is  the  duty  of  a  newspaper  reporter  to  present  to 
the  public  fair  and  impartial  reports  of  such  proceedings,  while  on 
the  other  hand,  as  one  of  the  public,  he  has  a  common  interest  with 
the  public  in  ensuring  that  such  proceedings  should  be  reported  with 
accuracy  and  uniformity . 

Bond  fide  comments  on  matters  of  public  interest,  which  are 
sometimes  treated  as  a  fourth  class  of  privileged  communications, 
have  been  dealt  with  under  the  head  of  Defamatory  Words,  c.  II., 
ante,  pp.  32 — 52. 


(222) 


DUTY    TO    SOCIETY.  15] 


[*  199] 

1.  Where  circumstances  exist,  or  are  reasonably  believed 
by  the  defendant  to  exist,  which  cast  upon  him  till':  duty 
of  making  a  communication  to  a  certain  other  person,  to 
whom  he  makes  such  communication  in  the  bona  fide  per- 
formance of  such  duty. 

The  duty  may  either  be  one  which  the  defendant  owes  to  society 
or  one  which  he  owes  to  his  family  or  to  himself.  It  will  be  con- 
venient therefore  to  treat  these  cases  in  the  following  order  : — 

A.  Communications  made  in  pursuance  of  a  duty  owned  to 
society. 

(i)  Characters  of  servants. 

(ii)  Other  confidential  communications  of  a  private  nature, 
(iii)  Information  as  to  crime  or  misconduct  of  others  :  Charges 
against  Public  Officials. 

B.  Communications  made  in  self-defence. 

(iv)  Statements  necessary  to  protect  the    defendant's    private 

interests, 
(v)  Statements  provoked  or  invited  by  previous  words  or  acts 

of  the  plaintiff. 

In  all  these  cases  the  duty  referred  to  need  not  be  one  binding  at 
law  :  any  "  moral  or  social  duty  of  imperfect  obligation  "  will  be 
sufficient.  (Per  Lord  Campbell  in  Harrison  v.  Bush,  5  E.  &  B. 
344  ;  25  L.  J.  Q.  B.  25.)  And  it  is  sufficient  that  the  defendant 
should  honestly  believe  that  he  has  a  duty  to  perform  in  the  matter, 
although  it  may  turn  out  that  the  circumstances  were  not  such  as  he 
reasonably  concluded  them  to  be.  ( Whiteley  v.  Adams,  15 
C.  B.  N.  S.  392;  33  L.  J.  C.  P.  89;  12W.  R.  153  ;  9  L.  T.[*200]  483; 
10  Jur.  N.  S.  470.)  It  is  a  question  of  bona  fides  ;  in  determining 
which  the  Court  will  look  at  the  circumstances  as  they  presented, 
themselves  to  the  mind  of  the  defendant  at  the  time  of  publication  ; 
supposing  of  course  that  he  is  guilty  of  no  laches,  and  does  not  wil- 
fully shut  his  eyes  to  any  source  of  information.  If  indeed  there 
were  means  at  hand  for  acertaining  the  truth  of  the  matter,  of  which 
the  defendant  neglects  to  avail  himself  and  chooses  rather  to  remain 
in  ignorance  when  he  might  have  obtained  full  information,  there 
will  be  no  pretence  for  any  claim  of  privilege. 

Above  all,  the  defendant  must,  at  the  date  of  the  communication, 
implicitly  believe  in  its  truth.  If  a  man  knowingly  makes  a  false 
charge  against  his  neighbour,  he  cannot  claim  privilege.  It  never 
can  be  his  duty  to  circulate  lies. 

"  For,  to  entitle  matter,  otherwise  libellous,  to  the  protection 
which  attaches  to  communications  made  in  the  fulfilment  of  a  duty, 
bona  fides,  or,  to  use  our  own  equivalent,  honesty  of  purpose,  is 
essential  ;  and  to  this,  again,  two  things  are  necessary — 1,  that  the 
communication  be  made  not  merely  in  the  course  of  duty,  that  is,  on 
an  occasion  which  would  justify   the  making  it,   but  also  from  a 

"(223) 


L52  QUALIFIED    PRIVILEGE. 

sense  of  duty  ;  2,  that  it  be  made  with  a  belief  of  its  truth."  (Per 
Cockburn,  C.  J.,  in  JJawkins  v.  Lord  Paulet,  L.  R.  5  Q.  B.  at 
p.  102.) 

And  even  where  the  defendant,  acting  under  a  strong  sense  of 
duty,  makes  a  communication  which  he  reasonably  believes  to  be 
true,  still  he  must  be  careful  not  to  be  led  away  by  his  honest  indig- 
nation into  exaggerated  or  unwarrantable  expressions.  For  the 
privilege  extends  to  nothing  which  is  not  justified  by  the  occasion. 
Thus  a  letter  may  be  privileged  as  to  one  part  and  not  as  to  the  rest. 
(Warren  v.  Warren,  1  C.  M.  &R.  251  ;  4  Tyr.  850  ;  Huntley  v. 
Ward,  6  C.  B.  N.  S.  514  ;  1  F.  &  F.  552  ;  6  Jur.  N.  S.  18  ;  Sim- 
monds  v.  Dunne,  Ir.  R.  5  C.  L.  358.) 

And  even  where  the  expressions  employed  are  [*201]  allowable  in 
all  respects,  still  the  mode  of  publication  may  take  them  out  of  the 
privilege.  Confidential  communications  should  not  be  shouted 
across  the  street  for  all  passers-by  to  hear.  Nor  should  they  be 
committed  to  a  postcard  or  a  telegram,  which  others  will  read. 
They  should  be  sent  in  a  letter  properly  sealed  and  fastened.  If 
the  words  be  spoken,  the  defendant  must  be  careful  in  whose  pres- 
ence he  speaks.  He  should  choose  a  time  when  no  one  else  is  by 
except  those  to  whom  it  is  his  duty  to  make  the  statement.  It  is 
true  that  the  accidental  presence  of  some  third  person,  unsought  by 
the  defendant,  will  not  take  the  case  out  of  the  privilege  ;  but  it 
would  be  otherwise  if  the  defendant  purposely  sought  an  opportunity 
of  making  a  communication  primti  facie  privileged  in  the  presence  of 
the  very  persons  who  were  most  likely  to  act  upon  it  to  the  prejudice 
of  the  plaintiff.     (See  post,  c.  IX.  Malice.) 


A.    Communications    made  in    pursuance  of  a  duty  owed  to 

society. 

(i.)    Characters  of  Servants. 

The  instance  that  occurs  most  frequently  in  ordinary  life  of  this 
first  class  of  privileged  communications  is  where  the  defendant  is 
asked  as  to  the  character  of  his  former  servant,  by  one  to  whom  he 
or  she  has  applied  for  a  situation.  A  duty  is  thereby  cast  upon  the 
former  master  to  state  fully  and  honestly  all  that  he  knows  either 
for  or  against  the  servant;  and  any  communication,  made  in  the 
performance  of  this  duty,  is  clearly  privileged  for  the  sake  of  the 
common  convenience  of  society,  even  though  it  should  turn  out  that 
the  former  master  was  mistaken  in  some  of  his  statements.  But  if 
the  master,  knowing  that  the  servant  deserves  a  good  character,  yet 
having  some  grudge  against  him,  or  from  some  other  malicious 
motive,  deliberately  states  [*202j  what  he  knows  to  be  false,  and 
gives  his  late  servant  a  bad  character,  then  such  a  communication  is 
not  a  performance  of  the  duty,  and  therefore  is  not  privileged. 
There  is,  in  fact,  in  such  a  case,  evidence  of  malice  which  "  takes 
the  case  out  of  the  privilege." 

No  one  is  bound  to  give  a  character  to  his  servant  when  asked  for 

(224) 


servants'   CHARACTERS.  153 

it.  (  Carrol  v.  Bird,  3  Esp.  201.)  The  old  statute  5  Eliz.  c.  4,  wliich 
required  a  master  in  certain  cases  to  satisfy  two  justices  of  the  peace 
that  he  had  reasonable  and  sufficient  cause  for  putting  away  his 
servant,  lias  long  been  obsolete,  and  now  is  wholly  repealed  by  the 
38  &  39  Vict.  c.  86,  s.  17.  But  if  any  character  is  given,  it  must  be 
one  fully  warranted  by  the  facts,  and  not  prompted  by  unworthy 
motives. 

If,  after  a  favourable  character  has  been  given,  facts  come  to  the 
knowledge  of  the  former  master  which  induce  him  to  alter  his 
opinion,  it  is  his  duty  to  inform  the  person  to  whom  he  gave  the 
character  of  his  altered  opinion.  Hence  a  Letter  written  to  retract  a 
favourable  character  previously  given  will  also  be  privileged.  (  Gard- 
ner v.  Slade,  13  Q.  B.  796  ;  18  L.  J.  Q.  B.  334  ;  13  Jur.  826  ;  Child 
v.  Affleck  and  wife,  9  B.  &  C.  403  ;  4  M.  &  R.  338.) 

So,  again,  if  I  take  a  servant  with  a  character  given  her  by  B., 
and  am  sadly  disappointed  in  her,  I  may  write  and  inform  B.  that 
she  does  not  deserve  the  character  he  gave  her,  so  that  he  may 
refrain  from  recommending  her  to  others  ;  and  such  a  letter  would 
be  privileged.  {Dixon  v.  Parsons,  1  F.  &  F.  24.)  But  see  the  dicta  in 
Fryer  v.  Kinnersley,  15  C.  B.  K  S.  429  ;  33  L.  J.  C.  P.  96  ;  10  Jur. 
N.  S.  441.  A  master  may  also  warn  his  present  servants  against 
associating  with  a  former  servant  whom  he  has  discharged,  and 
state  his  reasons  for  dismissing  him.  (Somerville  v.  Hawkins,  10  C. 
B.  590  ;   20  L.  J.  C.  P.  131  ;   15  Jur.  450.) 

But  if  I  happen  to  hear  that  a  discharged  servant  of  mine  is  about 
to  enter  the  service  of  B.,  it  may  be  questioned  whether  it  is  my  duty 
to  write  off  at  once  and  inform  B.  of  [*203]  the  servant's  misconduct. 
It  is  certainly  safer  to  wait  till  B.  applies  to  me  for  the  servant's 
character.  Eagerness  to  prevent  a  farmer  servant  obtaining 
another  place  has  the  appearance  of  malice,  and  if  it  were  found 
that  I  wrote  systematically  to  every  one  to  whom  the  plaintiff 
applied  for  work,  the  jury  "would  probably  give  damages  against 
me.  On  the  other  hand,  if  B.  was  an  intimate  friend  or  a  relation 
of  mine,  and  there  was  no  other  evidence  of  malice  except  that  I 
volunteered  the  infoi'mation,  the  occasion  would  still  be  privileged. 
In  short,  when  a  master  '"volunteers  to  give  the  character,  stronger 
evidence  will  be  required  that  he  acted  bona  fide,  than  in  the  case 
where  he  has  given  the  character  after  being  required  so  to  do.'' 
(Per  Littledale,  J.,  in  Pattison  v.  Jones,  8  B.  &  Cr.  p.  586  ;  3  C. 
&  P.  p.  387.) 

Illustrations. 

After  a  mercantile  firm  has  given  to  one  of  its  clerks  a  general  recommenda- 
tion by  means  of  which  he  obtains  a  situation,  if  a  partner  subsequently  dis- 
covers facts  which  alter  his  opinion  of  that  clerk's  character,  it  is  his  duty  to 
communicate  the  new  facts  and  his  change  of  opinion  to  the  new  employer  of 
that  clerk,  in  order  to  guard  against  his  being  misled  by  the  previous  recom- 
mendation of  the  firm. 

Fowles  v.  Bowen,  3  Tiffany  (30  N.  Y.R  .),  20. 

Sir  Gervas  Clifton  never  made  any  complaint  of  his  butler's  conduct  while  he 
was  with  him  ;  but  he  suddenly  dismissed  him  without  notice  and  without  a 
month's  wages.  The  butler  (naturally,  but  illegally)  refused  to  leave  the  house 
without  a  month's  wages;  a  violent  altercation  took  place,  and  eventually  a 

(225) 


154  QUALIFIED    PRIVILEGE. 

policeman  was  sent  for  who  forcibly  ejected  the  butler.  Sir  Gervas  subse- 
quently gave  the  butler  a  very  bad  character,  in  too  strong  terras,  and  making 
some  charges  against  him  which  were  wholly  unfounded.  Verdict  for  the 
plaintiff.     Damages  £20.  New  trial  refused. 

Rogers  v.  Clifton,  3  B.  &  P.  587. 

Murdoch  v.  Funduklian,  2  Times  L.  R.  215,  614. 
The  defendant  on  being  applied  to  for  the  character  of  the  plaintiff,  who  had 
been  his  saleswoman,  charged  her  with  theft.  He  had  never  made  such  a 
charge  against  her  till  then  :  he  told  her  that  he  would  say  nothing  about  it  if 
she  resumed  her  employment  at  his  house  ;  subsequently  he  said  that  if  she 
would  acknowledge  the  theft  he  would  give  her  a  character.  Held,  that  there 
was  abundant  evidence  that  the  charge  of  theft  was  made  mala  fide,  with  the 
intention  of  compelling  plaintiff  to  return  to  defendant's  service.     Damages,  £60. 

Jackson  v.  Hopperton,  16  C.  B.  N.  S.  829  ;  12  W.  R.  913  ;  10  L.  T. 
529. 
*204]  [If  a  master  about  to  dismiss  his  servant  for  dishonesty  calls  in  a  friend 
to  hear  what  passes,  the  presence  of  such  third  person  does  not  take  away  priv- 
ilege from  words  which  the  master  then  uses,  imputing  dishonesty. 

Taylor  v.  Hawkins,  16  Q.  B.  308  ;    20  L.  J.  Q.  B.  313  ;  15  Jur.  746. 

Jones  v.  Thomas,  34  W.  R.  104  ;  53  L.  T.  678  ;  50  J.  P.  149. 
Where  a  master  discharged  his  footman  and  cook,  and  they  asked  him  his 
reason  for  doing  so,  and  he  told  the  footman,  in  the  absence«of  the  cook,  that 
"  he  and  the  cook  had  been  robbing  him  ;  "  and  told  the  cook,  in  the  absence 
of  the  footman,  that  he  had  discharged  her  "  because  she  and  the  footman  had 
been  robbing  him : "  held,  that  these  were  privileged  communications  as 
respected  the  absent  parties,  as  well  as  those  to  whom  they  were  respectively 
made. 

Manby  v.  Witt,      )  18  C.  B.  544  ;  25  L.  J.   C.  P.  294  ;  2  Jur.  N.  S. 

Eastmead  v.  Witt,  \       1004. 
A  letter  written  by  an  employer  dismissing  a  shopwoman,  and  stating  the 
reasons  why  in  very  forcible  language,  is  a  privileged  communication,  and  the 
court  will  not  closely  scrutinize  the  language  to  find  evidence  of  malice. 

R.  v.  Perry,  15  Cox,  C.  C.  160. 

(ii.)    Other  communications  of  a  private  nature. 
(a)  Answers  to  confidential  inquiries. 

The  principles  which  apply  to  characters  given  to  servants  gov- 
ern also  all  other  answers  to  private  and  confidential  inquiries. 

If  the  owner  of  a  vacant  farm  ask  me  as  to  the  character  of  a 
person  applying  to  become  his  tenant,  my  answer  would  be  privi- 
leged. So  if  a  friend  of  mine  comes  down  into  the  country  to  live 
near  me,  and  asks  my  advice  as  to  the  tradesman  or  doctor  he  shall 
employ,  I  may  tell  him  my  opinion  of  the  various  tradesmen  or 
doctors  in  the  locality  without  fear  of  an  action  for  slander.  "If  a 
person  wrho  is  thinking  of  dealing  with  another  in  any  matter  of 
business  asks  a  question  abut  his  character  from  some  one  who  has 
means  of  knowledge,  it  is  for  the  interests  of  society  that  the  ques- 
tion should  be  answered;  and  if  answered  bond  fide  and  without 
malice,  the  answer  is  a  privileged  communication."  (Per  Brett,  L. 
J.,  in  Waller  v.  Loch  (C.  A.),  7  Q.  B.  D.  622  ;  51  L.  J.  Q.  B.  274; 
30  W.  R.  18  ;  45  L.  T.  242.) 

So,  too,  it  is  a  duty  every  one  owes  to  society  to  assist  in  the  dis- 
covery of  any  crime,  dishonesty,  or  misconduct,  [*205]  and  to  afford 
all  information  which  will  had  to  the  detection  of  the  culprit.  "It 
is  a  perfectly  privileged  communication  if  a  party  who  is*  interested 
in  discovering  a  wrong-doer  comes  and  makes  inquiries,  and  a  per- 

.     (226) 


CONFIDENTIAL    ADVICE.  155 

son  in  answer  makes  a  discovery  or  a  bond  fide  communication 
which  he  knows  or  believes  to  be  true,  although  it  may  possibly 
affect  the  character  of  a  third  person."  (Per  Parke,  B.,  in  Kine  v. 
Sewell,  3  M.  &  W.  302.) 

In  short,  whenever  in  answering  an  inquiry  the  defendant  is  act- 
ing bond  fide  in  the  discharge  of  any  legal,  moral,  or  social  duly, 
.his  answer  will  be  privileged.  "Every  one  owes  it  as  a  duty  to  his 
fellow-men  to  state  what  he  knows  about  a  person  when  inquiry  is 
made."  (Per  Grove,  J.,  in  Robshaw  v.  Smith,  38  L.  T.  423.  And 
see  Lentnery.  Merfield  (C.  A.),  Times  for  May  6th,  1880.) 

And  when  once  such  a  confidential  inquiry  is  set  on  foot,  all  sub- 
sequent interviews  between  the  parties  will  be  privileged,  so  long  as 
what  takes  place  thereat  is  still  relevant  to  the  original  inquiry. 
(Beatson  v.  Skene,  5  H.  &  N.  838;  29  L.  J.  Ex.  430;  6  Jur.  N.  S. 
780;  2  L.  T.  378;  Hopwoodv.  Thorn,  8  C.  B.  293;  19  L.  J.  C.  P. 
94;  14  Jur.  87;    Wallace  v.  Carroll,  11  Ir.  C.  L.  R.  485.) 

Of  course  the  defendant  must  honestly  believe  in  the  truth  of  the 
charge  he  makes  at  the  time  he  makes  it.  And  this  implies  that  he 
must  have  some  ground  for  the  assertion  :  it  need  not  be  a  conclu- 
sive or  convincing  ground  :  but  no  charge  should  ever  be  made 
recklessly  and  wantonly,  even  in  confidence.  The  inquirer  should 
be  put  in  possession  of  all  you  know,  and  of  your  means  of  knowl- 
edge; if  your  only  means  of  knowledge  is  hearsay,  tell  him  so  :  do 
not  state  a  rumour  as  a  fact  ;  and,  in  repeating  a  rumour,  be  careful 
not  to  heighten  its  colour,  or  exaggerate  its  extent.  If  the  only  in- 
formation you  possess  is  contained  in  a  letter,  it  is  best  to  give  him 
the  letter,  and  leave  him  to  draw  his  own  conclusions.  ( Coxhead  v. 
Richards,  2  C.  B.  569;  15  L.  J.  C.  P.  278;  10  Jur.  984;  Robshaw  v. 
Smith,  38  L.  T.  423.)  Do  not  speak  with  the  [*  206]  air  of  know- 
ing of  your  own  knowledge  that  every  word  you  say  is  the  fact 
when  you  are  merely  repeating  gossip  or  hazarding  a  series  of  reck- 
less assertions.  If  time  allows,  and  means  of  inquiry  exist,  you 
should  make  some  attempt  to  sift  the  charge  before  you  spread  it. 
In  short,  confidential  advice  should  be  given  seriously  and  conscien- 
tiously: it  should  be  manifest  that  you  do  not  take  a  pleasure  in 
maligning  the  plaintiff,  but  are  compelled  to  do  so  in  the  honest 
discharge  of  a  painful  duty. 

And,  above  all,  the  answer  must  be  pertinent  to  the  inquiry.  If 
I  am  asked  the  plaintiff's  name  or  address,  I  must  not  commence  to 
disparage  the  plaintiff's  credit,  conduct,  family,  or  wares.  In  fact, 
the  reply  must  be  an  answer  to  the  question,  or  reasonably  induced 
thereby,  and  not  irrelevant  information  gratuitously  volunteered. 
(SoHtham  v.  Allen,  Sir  T.  Raym.  231;  Huntley  v.  Ward,  6  C.  B.  N. 
S.  514.)  It  is  for  the  jury  in  each  ease  to  determine  whether  what 
passed  was  or  was  not  relevant  to  the  inquiry,  and  whether  or  no 
the  information  was  given  confidentially. 

Illustrations. 

If  a  friend  tells  me  he  wants  a  good  solicitor  to  act  for  him,  and  asks  my 
opinion  of  Smith,  I  am  justified  in  telling  him  all  I  know  for  or  against  Smith. 
But  if  a  stranger  asked  me  in  the  train  :  "  Is  not  that  gentleman  a  solicitor  ?  " 

(227)    • 


156  QUALIFIED    PRIVILEGE. 

« 

I  should  not,  it  is  submitted,  be  privileged  in  replying  :  "  Yes,  but  he  ought  to 
have  been  struck  off  the  rolls  long  ago." 

If  A.  is  about  to  have  dealings  with  B.,  but  first  comes  to  C.  and  confiden- 
tially asks  him  his  opinion  of  B.,  C.'s  answer  is  privileged.  "Everyone  is 
quite  at  liberty  to  state  his  opinion  bond  fide  of  the  respectability  of  a  party  thus 
inquired  about."     Per  Lord  Denman  in 

Storey  v.  GJiMlands,  8  C.  &  P.  234. 

Plaintiff  had  been  tenant  to  the  defendant ;  a  wine-broker  went  to  defendant 
to  ask  him  plaintiff's  present  address.  Defendant  commenced  to  abuse  the 
plaintiff.  The  broker  said  :  "  I  don't  come  to  inquire  about  his  character,  but 
only  for  his  address  ;  I  have  done  business  with  him, before."  But  the  defend- 
ant continued  to  denounce  the  plaintiff  as  a  swindler,  adding,  however,  "I 
speak  in  confidence."  The  broker  thanked  defendant  for  his  remarks,  and 
declined  in  future  to  trust  the  plaintiff.  Held,  that  it  was  rightly  left  to  the 
jury  to  say  if  defendant  spoke  bond  fide  or  maliciously. 
Picton  v.  Jdckman,  4  C.  &  P.  257. 
Southam  v.  Allen,  Sir  T.  Raymond,  231. 

[*207]  Watkins  met  the  defendant  in  Brecon,  and  addressing  him  said  :  "  I 
hear  that  you  say  the  bank  of  Bromage  and  Snead  at  Monmouth  has  stopped. 
Is  it  true  ?  "  Defendant  answered,  "  Yes,  it  is.  I  was  told  so.  It  was  so  reported 
at  Cricklewell,  and  nobody  would  take  their  bills,  and  I  came  to  town  in  con- 
sequence of  it  myself."  Held,  that  if  the  defendant  understood  Watkins  to  be 
asking  for  information  by  which  to  regulate  his  conduct,  and  spoke  the  words 
merely  by  way  of  honest  advice,  they  were  prima  facie  privileged. 

Bromage  v.  Prosser,  4  B.  &  Cr.  247  ;  1C.  &  P.  475  ;  6  D.  &  R.  296. 

The  defendant  was  asked  to  sign  a  memorial,  the  object  of  which  was  to 
retain  the  plaintiff  as  trustee  of  a  charity  from  which  office  he  was  about  to  be 
removqd.  The  defendant  refused  to  sign,  and  on  being  pressed  for  his  reasons, 
stated  them  explicitly.     Held,  a  privileged  communication. 

Cowles  v.  Potts,  34  L.  J.  Q.  B.  247  ;    11  Jur.  N.  S.  946  ;  13  W.  R. 
858. 

The  plaintiff  had  been  a  Major- General  commanding  a  corps  of  irregular 
troops  during  the  war  in  the  Crimea.  Complaint  having  been  made  of  the 
insubordination  of  the  troops,  the  corps  commanded  by  the  plaintiff  wTas  placed 
under  the  superior  command  of  General  Vivian.  The  plaintiff  then  resigned 
his  command,  and  General  Vivian  directed  General  Shirley  to  inquire  and 
report  on  the  state  of  the  corps,  and  particularly  referred  him  for  information 
on  the  matter  to  the  defendant,  who  wras  General  Vivian's  private  secretary  and 
civil  commissioner.  All  communications  made  by  the  defendant  to  General 
Shirley  touching  the  corps  and  the  plaintiff's  management  of  it  are  privileged, 
if  the  jury  find  that  the  defendant  at  the  time  honestly  believed  that  he  was 
acting  within  the  scope  of  his  duty  in  making  them. 

Beatson  v.  Skene,  5  H.  &  N.  838  ;    29  L.  J.  Ex.  430 ;   6  Jur.  N.  S. 

780  ;  2  L.  T.  378. 
Hopwood  v.  Thorn,  8  C.  B.  293  ;  19  L.  J.  C.  P.  94  ;  14  Jur.  87. 

A.,  B.,  and  C.  are  brother  officers  in  the  same  regiment.  A.  meets  B.  and 
says,  "  I  have  learned  that  C.  has  been  guilty  of  an  atrocious  offence  :  I  wish 
to  consult  you  whether  I  should  divulge  it — whether  I  should  speak  of  it  to  the 
commanding  officer."  Such  remark  and  the  discussion  that  ensued  would  be 
privileged,  if  bond  fide.     Per  Pi^ot,  C.  B.,  in 

Bell  v.  Parke,  10  Ir.  C.  L.  *R.  284.     [The  decision  in  the  case  turned 
on  the  language  of  the  plea.] 

The  plaintiff  was  a  London  merchant  .who  had  had  business  relations  with  the 
London  and  Yorkshire  Bank  (Limited).  The  defendant,  the  manager  of  that 
hank,  on  being  applied  to  by  one  Hudson  for  information  about  the  plaintiff, 
showed  Hudson  an  anonymous  letter  which  the  bank  had  received  about  the 
plaintiff,  and  which  contained  the  libel  in  question.  Held,  that  handing  Hud- 
soy  the  letter  in  confidence  was  a  privileged  communication.  Grove,  J.,  in 
refusing  a  rule  for  a  new  trial  made  the  following  remarks  : — "  The  defendant 
did  not  act  as  a  volunteer,  but  was  applied  to  for  information.  When  applied 
to  he  did  give  such  information  as  lie  possessed.  He  might  have  refused  to 
give  that  information.     He  had  no  legal  duty  cast  upon  him  to  give  any  opinion. 

(228) 


CONFIDENTIAL    COMMUNICATIONS.  157 

But  he  was  entitled  to  give  his  opinion  when  asked,  and  afortiori,  as  ii  seems 
to  me,  to  show  any  letters  he  had  received  bearing  on  ihe  subject.  If  one  man 
shows  another  a  letter,  he  leaves  him  to  estimate  what  value  attaches  to  it; 
whereas  any  opinion  he  gives  might  be  based  on  very  insufficient  grounds,  it- 
is  better  [*208]  to  state  facts  than  to  give  an  opinion.  livery  one  owes  it  as  a 
duly  to  his  fellow-men  to  state  what  he  knows  about  a  person,  when  inquiry  is 
made  ;  otherwise  no  one  would  be  able  to  discern  honest  men  from  dishonest 
men.  It  is  highly  desirable,  therefore,  that  a  privilege  of  this  sortshould  be 
maintained.  An  anonymous  letter  is  usually  a  very  despicable  thing.  Bui 
anonymous  letters  maybe  very  important,  not  by  reason  of  what  they  say,  hut 
because  they  lead  to  inquiry,  which  may  substantiate  what  they  have  said.  It 
seems  to  me,  therefore,  that" he  was  fully  entitled  to  show  this  anonymous  letter 
for  what  it  was  worth." 

Robshaw  v.  Smith,  28  L.  T.  423. 
Where  a  father  employed  the  defendant  to  make  inquiries  about  the  position 
and  antecedents  of  his  (laughter's  husband,  a  report  by  the  defendant  to  the 
father  of  the  result  of  his  inquiries  is  privileged. 

Atwill  v.  Mackintosh,  6  Lathrop  (120  Mass.),  177. 
So  where  an  attorney  employed  defendant  to  translate  some  German  into 
English,  no  action  lies  for  the  publication  of  such  translation  to  the  attorney. 

Luckerman  v.  Sonnemchein,  ?>2  Freeman  (62  Illinois),  115. 

And  see  Kerr  v.  Shedden,  4  C.  &  P.  528. 

Du  Barre  v.  Livette,  Peake,  76. 

(b)     Confidential   communications    not    in    answer    to    a   'previous 

inquiry. 

In  the  cases  just  quoted  stress  is  laid  on  the  fact  that  the  defend- 
ant did  not  volunteer  the  information  but  was  expressly  applied  to 
for  it.  This  is  always  no  doubt  a  very  material  fact  in  the  defend- 
ant's favour ;  but  it  is  never  alone  decisive.  "It  is  not  necessary 
in  all  cases  that  the  information  should  be  given  in  answer  to  an 
inquiry."  (Per  Jessel,  M.  R,  in  Waller  v.  Loch  (C.  A.),  7  Q.  B. 
D.  621  ;  51  L.  J.  Q.  B.  274  ;  45  L.  T.  242.)  Many  occasions  are 
privileged  in  which  no  application  is  made  to  the  defendant,  but  he 
himself  takes  the  initiative  ;  while,  on  the  other  hand,  as  we  have 
seen,  many  answers  to  inquiries  will  not  necessarily  be  privileged, 
even  if  given  confidentially.  The  question  in  every  case  is  this  : — 
Were  the  circumstances  such  that  an  honest  man  might  reasonably 
suppose  it  is  his  duty  to  act  as  the  defendant  has  done  in  this  case  ? 
And  the  circumstances  may  be  such  that  it  is  clearly  the  duty  of  a 
good  citizen  to  go  at  once  to  the  person  most  concerned  and  tell 
him  everything,  without  waiting  for  him  to  come  and  inquire.  It 
may  well  be  that  he  has  no  suspicions,  and  [*209]  never  would 
inquire  into  the  matter  unless  warned.     (See  post,  pp.  214—217.) 

But  in  cases  where  neither  life  nor  property  is  in  imminent 
and  obvious  peril,  there  the  circumstance  that  the  defendant  was 
applied  to  for  the  information,  and  did  not  volunteer  it,  will  materi- 
ally affect  the  issue.  Where  the  matter  is  not  of  great  or  imme- 
diate importance,  interference  on  my  part  may  be  considered  offi- 
cious and  meddlesome  ;  although,  had  I  been  applied  to,  it  would 
clearly  have  been  my  dnty  to  give  all  the  information  in  my  power. 
An  answer  to  a  confidential  inquiry  may  be  privileged  where  the 
same  information  if  volunteered  would  be  actionable. 

In  cases  then  in  which  there  can  be  a  doubt  as  to  the  defend- 

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158  QUALIFIED    PRIVILEGE. 

ant's  duty  to  speak,  the  fact  that  he  was  applied  to  forthe  informa- 
tion will  tell  strongly  in  his  favour.  In  cases  where  his  duty  to 
speak  was  clear  without  that,  the  fact  that  he  was  applied  to  is 
immaterial. 

lWustratiors. 

Both  the  Marquis  of  Anglesey  and  his  agent  told  the  defendant,  the  tenant  of 
Haywood    Park   Farm,  to  inform  them  if  he  saw   or   heard  anything    wrong 
respecting  the  game.     The  defendant  heard  that  the  gamekeeper  was  selling  I  he 
game,  and  believing  the  fact  to  he  so,  wrote  and  informed  the  Marquis.     Held, 
that  the  letter  was  privileged  ;  hut   Parke.  J.,  intimated   that  if  the  defendant 
had  not  heen  previously  directed  to  communicate  anything  he  thought  going 
wrong,  the  letter  would  have  been  unauthorized  and  libellous. 
Cockayne  v.  Hodgkisson,  5  C.  &  P.  543. 
See  King  v.  Watts,  8  C.  &  P.  615. 
If  a  master,  hearing  that  a  discharged  servant  is  seeking  to  enter  M.'s  service, 
writes  to  M.  of  his  own  accord  to  give  the  servant  a  bad  character,  and  thus 
forestalls  any  inquiry  by  M.  ;  it  will  at  all  events  require  stronger  evidence  to 
prove  that  he  aeted  bond  fide  than  it  would  had  he  waited  for  M.  to  write  and 
inquire. 

Pattison  v.  Jones,  8  B.  &  C.  578  ;  3  M.  &  R.  101. 
Horsford  was  about  to  deal  with  the  plaintiff,  when   he  met  the  defendant, 
who  said  at  once,  without  his  opinion  being  asked  at  all,  "  If  you  have  anything 
to  do  with  Storey,  you  will  live  to  repent  it  ;  he  is  a  most  unprincipled  man," 
&c.  Lord  Denman  directed  a  verdict  for  the  plaintiff,  because  the  defendant 
began  by  making  the  statement,  without  waiting  to  be  asked. 
Storey  v.  Challands,  8  C.  &  P.  234. 
Nash  selected  plaintiff  to  be  his  attorney  in  an  action.    Defendant,  apparently 
[*210]  a  total  stranger,  wrote  to  Nash  to  deprecate  his  so  employing  the  plain- 
tiff. This  was  held  to  be  clearly  not  a  confidential  communication.  Damages,  Is. 
Godson  v.  Home,  1  B.  &  B.  7  ;  3  Moore,  223. 
A  husband  asked  a  medical  man  to  see  his  wife  and  ascertain  her  mental  con- 
dition.    He  reported  to  the  husband  that  she  was  insane.     Held,  a  privileged 
communication. 

Weldon  v.  Winslow,  Times  for  March  14th  to  19th,  1884. 
I  am  not  justified  in  standing  at  the  door  of  a  tradesman's  shop  and  volun- 
tarily defaming  his  character  to  his  intending  customers.     But  if  an  intending 
customer  comes  to  me  and  inquires  as  to  the  respectability  or  credit  of  that 
tradesman,  it  it  is  my  duty  to  tell  him  all  I  know. 
Storey  v.  Challands,  8  C.  &  P.  234 
At  the  hearing  of  a  county  court  case,  Netflefold  v.  Fulcher,  Fulehers  solic- 
itor commented  severely  on 'the  conduct  of  the  plaintiff,  Nettlefold's  debt  collec- 
tor.    Not  content  with  that,  Fulcher's  solicitor  sent  a  full  report  of  the  case  to 
the  Marylebone  Gazette,  including  his  remarks  on  the  plaintiff.    The  jury  found 
that  this  report  was  substantially  fair  and  accurate,  but  that  it   was  sent  to  the 
newspaper  "  with  a  certain  amount  of  malice."    The  Court  upheld  this  finding, 
laying  especial  stress  upon  the  fact  that  the  defendant  was  a  volunteer,  and  not 
an  ordinary  reporter  for  that  paper. 

Stevens  v.  Sampson,  5  Ex.  D.  53  ;  49  L.  J.  Q.  B.  120  ;  28  W.  R.  87  ; 
41  L.  T.  782. 

(c)    Communications  made  in  discharge  of  a   duty  arising  from  a 
confidential  relationship  existing  between  the  parties. 

In  what  cases  then  will  a  defendant  he  privileged  in  going  of  his 
own  accord  to  the  person  concerned,  and  giving  him  information 
which  he  has  not  asked  for  ?  This  is  often  a  difficult  question  to 
answer.  But  in  one  class  of  cases  it  is  clear  that  it  is  not  only 
excusable,  but  that  it  is  imperative  on  the  defendant  so  to  do  ;  and 

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CONFIDENTIAL    RELATION.  159 

that  is  where  there  exists  between  the  parties  such  a  confidential 
relation  as  to  throw  on  the  defendant  the  duty  of  protecting  the 
interests  of  the  persons  concerned. 

Sueli  a  confidential  relationship  exists  between  husband  and  wife, 
father  and  son,  brother  and  sister,  guardian  and  ward,  master  and 
servant,  principal  and  agent,  solicitor  and  client,  partners,  or  even 
intimate  friends:  in  short,  wherever  any  trust  or  confidence  is 
reposed  by  the  one  in  the  other.  In  other  words,  it  will  be  the 
duty  of  A.  to  volunteer  information  to  15.,  whenever  B  could  justly 
[*21l]  reproach  A.  for  his  silenee  if  he  did  not  volunteer  such 
information. 

Merely  labelling  a  letter  "  Private  and  confidential"  or  merely 
stating,  "  I  speak  in  confidence"  will  not  make  a  communication 
confidential  in  the  legal  sense  of  that  term,  if  there  be  in  fact  no 
relationship  between  the  parties  which  the  law  deems  confidential. 
(Picton  v.  Jackman,  4  C.  &  I*.  257.) 

Thus  it  is  clearly  the  duty  of  my  steward,  bailiff,  foreman,  or 
housekeeper,  to  whom  I  have  entrusted  the  management  of  my  lands, 
business,  or  house,  to  come  and  tell  me  if  they  think  anything  is 
going  wrong,  and  not  to  wait  till  my  own  suspicions  are  aroused, 
and  I  myself  begin  asking  questions.  So  my  family  solicitor  may 
voluntarily  write  and  inform  me  of  anything  which  he  thinks  it  is 
to  my  advantage  to  know,  without  waiting  for  me  to  come  down  to 
his  office  and  inquire.  But  it  would  be  dangerous  for  another 
solicitor,  wdiom  I  had  never  employed,  to  volunteer  the  same 
information  ;  for  till  I  retain  him  in  the  matter,  there  is  no  confi- 
dential relation  existing  between  us.  So  a  father,  guardian,  or  an 
intimate  friend  may  warn  a  young  man  against  associating  with  a 
particular  individual  ;  or  may  warn  a  lady  not  to  marry  a  particular 
suitor  ;  though  in  the  same  circumstances  it  might  be  considered 
officious  and  meddlesome,  if  a  mere  stranger  gave  such  a  warning. 
So  if  the  defendant  is  in  the  army  or  in  a  government  office,  it 
would  be  his  duty  to  inform  his  official  superiors  of  any  serious 
misconduct  on  the  part  of  his  subordinates  ;  for  the  defendant  is 
in  some  degree  answerable  for  the  faults  of  those  immediately  under 
his  control.  But  it  does  not  follow  that,  if  A.  and  B.  are  officers  or 
clerks  of  equal  rank  and  standing,  it  is  the  duty  of  A.  to  tell  tales 
of  B.,  except  in  self-defence  ;  for  A's  superiors  expect  him  to  do 
his  own  work  merely,  and  have  not  invested  him  with  any  authority 
or  control  over  B.  (See  Belle  v.  Parke,  10  Ir.  C.  L.  R.  284  ;  11 
Ir.   C.  L.  R.  413.) 

Illustrations. 

My  regular  solicitor  may  unasked  give  me  any  information  concerning  third 
persons  of  which   lie  thinks  it  to  my  interest  that  I  should  be  informed,  even 
although  he  is  not  at  the  moment  conducting  any  legal  proceedings  forme. 
Davis  v.  Reeves,  5  Ir.  C.  L.  R.  79. 
A  solicitor  who  is  conducting  a  case  for  a  minor  may  inform  his  next  friend 
of  the  minor's  misconduct. 

Wright  v.   Woodgate,  2  C.  M.  &  R.  573;  1  Tyr.  &  G.  12  ;  1  Gale, 
329  (approved  in  L.  R.  4  P.  C.  495.) 
[*212J  Rumours  being    in  circulation    prejudicial   to  the    character  of  the 
plaintiff,  a  dissenting  minister,  he  courted  inquiry,  and  appointed  A.  to  sift  the 

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1G0  QUALIFIED    PRIVILEGE. 

matter  thoroughly.  It  whs  agreed  that  the  defendant  should  represent  the 
malcontent  portion  of  the  congregation,  and  stale  the  ease  againsl  the  plaintiff 
to  A.  A  confidential  relationship  being  thus  established  between  the  defendant 
and  A.,  all  that  took  place  between  them,  whether  by  word  of  mouth  or  in 
writing,    SO   Long   as   the  inquiry    lasted,  and    relative   thereto,    was  held  to   be 

privileged. 

Hopwood  v.  Thorn,  8  C.  B.  293  ;  19  L.  J.  C.  P.  94  ;  14  Jur.  87. 
A  report  by  the  Comptroller  of  the  Navy  to  the  Board  of  Admiralty  upon 
the  plans  and'  proposals  of  a  naval  architect  is  clearly  privileged.      Per  drove, 

Henwood  v.  Harri»m,  L.   R,  7  C.  P.  606  ;  41  L.  J.  C.  P.  200  ;  20 
\Y.  R.  1000  ;  26  L.  T.  938. 
A  timekeeper  employed  on  public  works,  on  behalf  of  a  public  department, 
wrote  a  letter  to  the  secretary  of  the  department,  imputing  fraud  to  tin  eon- 
tractor.     Blackburn,  J.,  directed  the  jury  that  if  they  thought  the   letter  was 
written  in  good  faith  and  in  the   discharge    of    the  defendant's    duty  to  his 
employers,  it  was  privileged,  although  written  to  the  wrong  person. 
Scarll  v.  Dixon,  4  F.  &  F.  250. 
A  relation  or  intimate  friend  may  confidentially  advise  a  lady  not  to  marry  a 
particular  suitor,  and  assign  reasons,  provided  he  really  believes  in  the  truth  of 
the  statements  he  makes. 

Todd  v.  Hawkins,  2  M.  &  Rob.  20 ;  8  C.  &  P.  88. 
And  see  per  Erskine,  amicum  curia,  2  Smith,  4. 
Adams  v.  Coleridge,  1  Times  L.  R.  84. 
The  defendant  and  Tinmouth  were  joint  owners  of  The  Robinson,  and  engaged 
the  plaintiff  as  master  ;  in  April,  1843,  defendant  purchased  Tinmouth's  share  ; 
in  August,   1843,  defendant  wrote  a  business  letter  to  Tinmouth,  claiming  a 
return  of    £150,   and    incidentally   libelled    the    plaintiff.     Held  a  privileged 
communication,  as  the  defendant  and  Tinmouth  were  still  in  confidential  re- 
lationship. „.       _„ 
Wilson  v.  Robinson,  7  Q.  B.  68 ;  14  L.  J.  Q  B.  196  ;  9  Jur.  726. 
The  defendant,  a  linendraper,  dismissed  his   apprentice  without  sufficient 
legal  excuse  :  he  wrote  a  letter  to  her  parents,  informing  them  that  the  girl 
would  be  sent  home,  and  giving  his  reasons  for  her  dismissal.     Cockburn,  C. 
J.,  held  this  letter  privileged,  as  there  was  clearly  a  confidential  relationship 
between  the  girl's  master  and  her  parents. 

James  v.  Jolly,  Bristol  Summer  Assizes,  1879. 
See  Fowler  and  wife  v.  Homer,  3  Camp.  294. 
So  of  course  a  letter  to  the  girl  herself  stating  in  detail  the  faults  her  late 
employer  found  with  her. 

R.  v.  Perry,  15  Cox,  C.  C.  169. 
But  a  complaint  of  a  man's  conduct  is  not  privileged,  if  addressed  by  the 
employer  to  the  man's  wife. 

Jones  v.  Williams,  1  Times  L.  R.  572. 
The  officers  and  men  of  the  garrison  of  St.  Helena  gave  an  entertainment  at, 
the  theatre  at  which  considerable  noise  and  disturbamce  took  place.  The  com- 
manding officer  was  informed  that  this  was  caused  by  the  plaintiff  who  was 
said  to  have  been  drunk.  The  plaintiff  was  an  assistant  master  in  the  Govern- 
ment School.  The  commanding  officer  reported  the  circumstances  to  the  colonial 
[*213]  secretary  of  the  island,  and  the  plaintiff  was  in  consequence  suspended 
from  his  appointment.  Verdict  for  the  plaintiff  disapproved  and  set  aside,  and 
judgment  arrested. 

Stace  v.  Griffith,  L.  R.  2  P.  C.  426  ;  Moore.  P.  C.   C.   N.   S.   18  ;  20 

L.  T.  197. 
Sutton  v.  Plumridge,  16  L.  T.  741. 
It  is  the  duty  of  an  under-master  in  a  college  school  to  inform  the  head- 
master that  reports  have  been  for  some  time  in  circulation  imputing  habits  of 
drunkenness  to  the  second-master. 

Hume  v.  Marshall,   (Cockburn,  C.  J.),  42  J.  P.  136. 
But  where,  after  an  election,  the  agent  of  the  defeated  candidate  wrote  a 
letter  to  the  agent  of  the  successful  candidate,  asserting  that  the  plaintiff  and 
another  (both  members  of  the  successful  candidate's  committee)  had  bribed  a 

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INFORMATION    VOLUNTEERED.  161 

particular  voter,  the  latter  was  held  not  to  be  privileged,  as  there  was  no  con 
fidential  relation  exising  between  the  two  agents. 

Miekeson  v.  Milliard  and  another,  L.  It.  9  Ex.  79  ;  43  L.   J.   Ex.  37  ■ 
22  W.  It.  372  ;  30  L.  T.  196. 
A  circular  letter,  sent  by  the  secretary  to   the  members   of  a  society  for  the 
protection  of  trade  against  sharpers  and  swindlers,  is  not  a  privileged  communi- 
cation. 

Getting  v.  Foss,  3  C.  &  P.   160. 

Goldstein  v.  Foss,  2  C.  &  P.  252  ;  6  B.  &  C.    154  ;  4  Bing.  489  ;  2  Y. 

&  J.  146  ;  4  D.  &  R.  197  ;  1  M.  &  P.  402. 
Humphreys  v.  Miller,  4  C.  &  P.  7. 
But  now  see  Waller  v.  Loch,  (C.  A.  ),  7  Q.  B.  D.  619;  51  L.  J.  Q.  B. 

274;  30  W.  R.  18  ;  45  L.  T.  243  ;  46  J.  P.  484. 
Clover  v.  Hoyden,  L.  It.  17  Eq.  190  ;  43  L.  J.    Ch.  665  ;  22  W.  R. 

254  ;  29  L.  T.  639. 
JYewbold  v.  Bradtstreet  and  Son,  57  Maryland,  38  ;  40  Amer.  Rep. 
426.  l 

(d)  Information    volunteered    when   there  is    no    confidential 
relationship  existing  between  the  parties. 

Where  the  defendant  does  not  stand  in  any  confidential  relation 
to  the  person  interested,  it  is  difficult  to  define  what  circumstances 
will  he  sufficient  to  impose  on  him  the  duty  of  volunteering  the 
information.  The  rule  of  law  applicable  to  such  cases  cannot  be 
better  expressed  then  in  the  following  passage  : — "  Where  a  person 
is  so  situated  that  it  becomes  right  in  the  interests  of  society 
that  he  should  tell  to  a  third  person  certain  facts,  then  if  he  bond 
fide  and  without  malice  does  tell  them  it  is  a  privileged  communi- 
cation," (per  Blackburn,  J.,  in  Davies  v.  Snead,  L.  R.  5  Q.  B.  611  ; 
39  L.  J.  [  *  214  ]  Q.  B.  202  ;  23  L.  T.  609)— a  passage  cited  with 
approval  by  Jessel,  M.  R.,  and  Brett,  L.  J.,  in  Waller  v.  Loch, 
(C.  A.),  7  Q.  B.  D.  621,  622  ;  51  L.  J.  Q.  B.  274  ;  30  W.  R.  18  ;  45 
L.  T.  242  ;  46  J.  P.  484.  But  the  difficulty  is  in  any  given  case  to 
determine  whether  it  had  or  had  not  become  right  in  the  interests 
of  society  that  the  defendant  should  act  as  he  did.  And  this  is  a 
question  rather  of  social  morality  than  of  law. 

^or  instance,  if  I  learn  that  one  of  my  tradesmen  is  about  to  sup- 
's on  credit  to  a  man  whom  I  know  to  be  practically  insolvent,, 
r'-      him  not  to  do  so  ?     Is  it  right,  in  the  interests  of  society, 
.     ell  him  ".-hat  T  know,  or  am  I  to  stand  by  and  see  him 
It  ■     ?     In  the  days  of  Elizabeth,  it  was  considered  clear 

laA         „  xjo  action  would  lie  for  ?uch  a  caution  given  as  "  good  coun- 
sel.      (  Vanspike  v.    Cleyson,  Cro.  Eliz.  541  ;  1  Roll.  Abr.  67.)      So 
it  was  in  the  days  of  George  III.     [Herber  v.  Dowson,  B.  N.  P.  8). 
But  in  1838  Lord  Abinger,  C.  B.,    held  that  no  such  communication 
suould  be  volunteered :  the  defendant  must  wait  till  the  tradesman 
+o  him  for  advice.     "If   the  defendant  had  been  asked  by 
'*  as  to  the  plaintiff,  and  had  said  what  he  did  without 
'  .10  action  would  have  been  maintainable  ;  but  as  he  made  the 
unication  without  being  asked  in  any  way  to  do  so,  he  is  liable 
■-    action,  if  the  words  reflect  on  the  character  of  the  plaintiff  as 
i.an.  {Ring  v.   Watts,  8  C.  &  P.  at  p.  615.)   And  in  Bennett 

&  SLAN.  (233) 


162  QUALIFIED    PRIVILEGE. 

|V  Beacon  (1846),  2  C.  B.  628  ;  15  L.  J.  C.  P.  289,  the  Court  of  Com- 
mon Pleas  was  equally  divided  on  this  question.  I  venture  to  think 
that  the  judgments  of  Tindal,  C.  J.,  and  Erie,  J.,  would  be  followed 
in  the  present  day  rather  than  those  of  Coltman  and  Gresswell,  JJ. 
I  think  such  a  caution  would  be  held  privileged  if  made  on  adequate 
grounds  out  of  concern  for  the  person  cautioned,  and  not  from  any 
spite  against  the  plaintiff. 

In  Coxhead  v.  Bichards  (1846,  2  C.  B.  569  ;  14  L.  J.  C.  P.  278  ; 
10  Jur.  984,  the  same  Court  was  equally  divided  on  a  very  similar 
question,  whether  a  man  may  inform  the  owner  of  a  ship  that  his 
captain  has  been  guilty  of  gross  misconduct  at  sea.  Here,  again, I  think 
the  view  taken  by  Tindal,  C.  J.,  and  Erie,  J.,  would  probably  prevail 
in  the  present  day.  Willes,  J.,  said  in  Amann  v.  Daman  (1860),  8 
C.  B.  K  S.  at  p.  602  ;  29  L.  J.  C.  P.  at  p.  314,  that  he  was  prepared 
"  to  go  the  whole  length  "  with  them.  It  was  admitted  on  all  hands 
in  Clark  v.  Mob/neux,  3  Q.  D.  237;  47  L.  J.  Q.  B.[*215]  230  ;  26  W. 
R.  104  ;36  L.  T.  466  ;  37  L.  T.  694  ;  14  Cox,  C.  C.  10,  that  a  letter 
sent  to  an  absent  vicar,  informing  him  of  the  misconduct  of  the 
curate  whom  he  had  left  in  charge  of  the  parish,  was  privileged. 
And  generally,  am  I  not  always  justified  in  informing  a  master  or 
employer  of  any  misconduct  on  the  part  of  his  servant  or  workman 
which  has  come  to  my  knowledge,  and  not  to  his  ?  It  is  submitted 
that  such  a  communication  is  privileged,  although  volunteered,  if 
made  honestly  from  a  sense  of  duty,  and  not  officiously,  or  from  a 
love  of  gossip. 

"  If  a  neighbour  makes  inquiry  of  another  respecting  his  own  serv- 
ants, that  other  may  state  what  he  believes  to  be  true  ;  but  the  case 
is  different  when  the  statement  is  a  voluntary  act  ;  yet,  even  in  this 
case,  the  jury  is  to  consider  whether  the  words  were  dictated  by  a 
sense  of  the  duty  which  one  neighbour  owes  to  another."  (Per 
Coltman,  J.,  in  Rumsey  v.  Webb  et  icx.  (1842),  Car.  &  M.  at  p.  105  ; 
and  this  direction  was  approved  by  the  Court,  11  L.  J.  C.  P.  129.) 
In  Brooks  v.  Blanshard  (1833),  1  Cr.  &  M.  779;  3  Tyrw.  844,  the 
plaintiff  wTas  neither  in  the  employ  of  the  Wear  Commissioners,  nor 
seeking  such  employment,  at  the  time  when  the  defendant  wrote 
the  letter  which  afterwards  pi'evented  plaintiff's  election  ;  otherwise 
it  would  probably  have  been  held  a  privileged  communication.  ." 
was  the  oral  statement  in  Harris  v.  Thompson  (1853),  i° 
333.     In  both  cases  the  communication  .was  volunteered. 

It  appears  to  be  clear  that  if  the  defendant  reasonab  s 

that  human  life  would  be  seriously  imperilled  by  his  remainuv        nt 
he  may  volunteer  information  to  those  thus  endangered,  or  to  Ueir 
master,  though   he   be  not  himself  personally  concerned   (see  pr 
Cresswell,  J.,  2  C.  B.  605.)     So  if  the  money  or  goods  of  the  pe  - 
son  to  whom  he  speaks  would  be  in  great  and  obvious  danger  of  bt 
ing  stolen  or  destroyed.     So  too  it  appears  that  the  defendant  may. 
without  being  applied  to  for  the  information,  acquaint  a  master 
the  misconduct  of  his  servants,  if  instances  have  come   und 
especial  notice  of  the  defendant  which  have  been  concealed  f roi. 
master's  eye.     But  in  most  other  cases  the  defendant  runs   a  & 
risk  in  volunteering  statements  which  afterwards  turn  out  to  1 

(234) 


INFORMATION    VOLUNTEER KI).  [63 

accurate,  unless  indeed  he  is  himself  personally  interested  [*216)  in 
the  matter,  or  compelled  to  interfere  by  the  fiduciary  relationship  in 
which  he  stands  to  some  person  concerned.  Although  the  defend- 
ant may  feel  sure  that  if  he  were  in  his  neighbour's  place,  he 
should  be  most  grateful  for  the  information  conveyed,  still  he  must 
recollect  that  it  may  eventually  turn  out,  that  in  endeavouring  to 
avert  a  fancied  injury  to  that  neighbour,  he  has  really  inflicted  an 
undoubted  and  undeserved  injury  on  the  plaintiff. 

Of  course  defendant  must  at  the  time  he  makes  the  statement 
sincerely  believe  in  its  truth.  But  this  alone  will  afford  him  node- 
fence.  (Botterill  v.  Whyte/iead,  41  L.  T.  588.)  It  is  necessary 
further  that  circumstances  should  be  present  to  his  mind  which 
reasonably  impose  on  him  a  duty  to  make  such  statement.  If 
such  circumstances  exist,  the  statement  is  privileged,  although 
it  may  prove  to  be  untrue.  It  is  not  necessary  that  before 
making  such  statement  the  defendant  should  have  thoroughly  inves- 
tigated the  reports  which  had  reached  him.  Hearsay  is  sufficient 
reasonable  and  probable  cause  in  the  absence  of  malice.  (Maitland 
v.  Bramwell,  5  F.  &  F.  623  ;  Coxhead  v.  Richards,  2  C.  B.  569  ;  15 
L.  J.  C.  P.  278  ;  Lister  v.  Perryman,  L.  R.  4  H.  L.  521  ;  39  L.  J. 
Ex.  177  ;  23  L.  T.  269)  ;  unless  the  defendant  ought  for  any  reason 
to  have  known  that  his  informant  was  unreliable  and  his  story  un- 
deserving of  belief.  And,  lastly,  the  defendant  must  make  the 
statement  under  an  honest  sense  of  duty,  desiring  to  serve  the 
person  most  concerned,  and  not  from  any  malicious  or  self-seeking 
motive. 

It  is  the  province  of  the  judge  to  decide  whether  a  communication 
is  privileged  or  not,  when  the  facts  are  undisputed.  If  therefore, 
although  the  defendant  alleges  that  he  acted  under  an  honest  sense 
of  duty,  the  judge  can  see  no  evidence  of  any  circumstances  raising 
such  a  duty,  he  should  rule  that  no primd  facie  case  of  privilege  has 
been  established.  If,  however,  circumstances  have  been  proved  be- 
fore him,  rendering  the  alleged  sense  of  duty  reasonably  possible, 
the  judge  should  leave  to  the  jury  the  question  :  Did  the  defendant 
honestly  believe  it  to  be  his  duty  to  make  the  communication  com- 
plained of,  and  did  he  do  so  under  a  sense  of  that  duty  ? 

[*217]  In  deciding  this  question,  the  jury  must  not  ask  themselves 
merely,  "  Should  we  have  acted  as  the  defendant  has  done  in  such 
circumstances  ?"  for  different  people  act  differently  in  similar  per- 
plexities. Moreover  the  matter  has  been  thoroughly  investigated  by 
the  time  it  comes  before  the  jury,  and  what  to  the  defendant  at 
the  time  seemed  matter  of  serious  suspicion  has  all  been  explained 
away  in  court.  The  jury  must  place  themselves  in  the  position  of 
the  defendant  at  the  time  these  suspicious  circumstances  were 
brought  to  his  knowledge,  when  first  the  question  arose  in  his  mind  ; 
"  ought  I  not  to  inform  A.  ?  "  It  may  well  be  that  another  man  ' 
would  have  said,  "  It  is  no  concern  of  mine,"  and  would  have  done 
nothing  (which  is  always  the  safer  course).  But  that  does  not  prove 
that  defendant  was  wrong  in  acting  as  he  did.  It  is  not  sufficient 
for  the  defendant  merely  to  swear,  "  I  acted  under  a  sense  of  duty," 

(235) 


1G4  QUAI.IFIKD    PBIVILHGK. 

if  no  other  reasonable  man  would  have  so  acted  in  the  same  circum- 
stances. But  the  jury  should  find  for  the  defendant  it'  they  are 
satisfied  that  he  both  honestly  felt,  and  hud  reasonable  grounds  for 
feeling,  that  he  could  not  conscientiously  allow  A.  to  continue  in 
secure  ignorance,  but  that  he  must  communicate  to  him  that  which 
he  was  so  much  concerned  to  know. 

Illustrations. 

A.  and  B.  arc  tenants  to  (lie  same  landlord  with  similar  clauses  in  their  res- 
pective leases.  A.  lias  reason  to  believe  thatB.  is  breaking  his  covenants,  commil 
ting  waste,  violating  the  rotation  of  crops,  &c.  The  landlord  is  away  abroad. 
It  is  submitted  on  the  authority  of  Cockayne  v.  Hodgkisson,  5.  C.  &  P.  543,  ante 
p.  209,  that  it  is  not  the  duty  of  A.  to  write  and  inform  the  landlord  of  his  sus- 
picions, and  that  therefore  such  a  letter  would  not  be  privileged  ;  unless  the 
landlord  had  in  some  way  set  A.  in  authority  over  B. 

A  housemaid  thinks  the  cook  is  robbing  their  master.  It  is  not  her  duty  to 
speak  at  once  on  bare  suspicion  merely  ;  but  as  soon  as  she  sees  something  which 
reasonably  appears  to  her  inconsistent  with  the  cook's  innocence,  she  will  be 
justified,  it  is  submitted,  in  telling  her  master  all  she  knows. 

"If  a  man  write  to  a  father  scandalous  matter  concerning  his  children,  of 
which  he  gives  notice  to  the  father  and  adviseth  the  father  to  have  better  regard 
to  his  children;  this  is  only  reformatory,  without  any  respect  of  profit  to  him 
which  wrote  it  ;  it  shall  not  be  intended  to  be  a  libel." 

Peacock  v.  Beynal  (1612),  2  Brownlow  <fc  Goldesborough,  151. 
Approved  by  Erie,  C  J.,  15  C  B.  N.  S-  418  ;  33  L.  J.  C.  P.  95. 
Communications  confidentially  made  to  a  master  as  to  the    conduct  of  his 
servants,  by  one  who  has  had  an  opportunity  of  noticing  certain  malpractices 
on  their  part,  are  privileged. 

Cleaver  v.  Sarraude,  1  Camp.  268. 

Kins  v.  Scwell,  3  M.  &  W.  297. 

Amann  v.  Damm,  8C.B.N.S.  597  ;  29  L.  J.  C.  P.  313  ;  7  Jur.  N. 

S.47;  8  W.R.  470. 
Masters  v.  Burgess,  3  Times  L.  R.  96. 
[*218]    The  occupier  of  a  house  may  complain  to  the  landlord  of  the  workmen 
he  has  sent  to  repair  the  house. 

Toogood  v.  Spyring,  1  C.  M.  &  P.  181  ;  4  Tyrw.582. 
A  landlord   may,  it  seems,  complain   to  his  tenant  of  the  conduct  of  her 

KnigM  v.  Oibbs,  1  A.  &  E.  43  ;  3  N.  &  M.  467. 
If  a  report  be  current  in  a  parish  as  to  the  disgraceful  conduct  of  the  incum- 
bent bringing  scandal  on  the  church,  a  good  churchman  may  inform  the  bishop 
of  the  diocese  thereof,  although  he  does  not  reside  in  the  district  and  is  not  per- 
sonally interested. 

James  v.  Boston,  2  C.  &  K.  4. 
A  letter  written  by  a  private  individual  to  the  chief  secretary  of  the  Post- 
master-General complaining  of  the  misconduct  of  an  official  under  the  authority 
of  the  Postmaster-General,  is  privileged,  if  made  bond  fide  and  without  malice, 
even  though  some  of  the  charges  made  in  the  letter  may  not  be  true,  and 
though  the  defendant  stood  in  no  relation,  past  or  present,  either  to  the  plain- 
tiff or  to  the  Post  Office  authorities. 

Blake  v.  Pilfold,  1  Moo.  &  Rob.  198. 
Woodward  v.  Lander,  6  C.  &  P.  548. 
The  first  mate  of  a  merchant  ship  wrote  a-letter  to  the  defendant,  an  old  and 
intimate  friend,  stating  that  he  was  placed  in  a  very  awkward  position  owing  to 
the  drunken  habits,  &c,  of  the  captain,  and  saying  :— "  How  shall  I  act  ?  It  is 
my  duty  to  write  to  Mr.  Ward  (the  owner  of  the  ship),  but  my  doing  so  would 
ruin  "  the  captain  and  his  wife  and  family.  The  defendant,  after  much  delib- 
eration and  consultation  with  other  nautical  friends,  thought  it  his  duty  to  show 
the  letter  to  Ward,  who  thereupon  dismissed  the  captain.  The  defendant  knew 
nothing  of  the  matter  except  from  the  mate's  letter.     Tindal,  C.  J.,  told  the 

(236) 


INFORMATION    VOLUNTEERED.  165 

iury  that  the  publication  was  prima  facie  privileged  ;  and  they  negatived  malice. 
The  Court  of  C.  P.  was  equally  divided  on  the  question  whether  so  showing 
the  letter  was  privileged  ;  and  therefore  the  verdict  for  the  defendant  stood. 

Coxhead  v.  Richards,  2  C.  15.  569  ;  L5  I,.  J.  C.  P.  2?s  ;  10  Jur.  984. 

A  lieutenant  in  the  navy  was  appointed  by  the  Government  agent  or  superin- 
tendent on  hoard  a  transport  ship,  The  Jupiter.  He  wrote  a  letter  to  the  secre- 
tary of  Lloyd's  Coffee-house  imputing  misconduct  and  incapacity  to  the 
plaintiff,  the  master  of  The  Jupiter.  This  was  held  altogether  unprivileged  , 
the  information  should  have  been  given  to  the  Government  alone,  by  whom  the 
defendant  was  employed. 

Harwood  v.  Green,  3  C.  &  P.  141. 
The  defendant  said  to  one  Dudley,  "  Doth  Vanspike  (the  plaintiff,  a  merchant) 
owe  you  any  money?"  Dudley  replied  that  he  did.  Defendant  then  said, 
"You  had  'best  call  for  it ;  take  heed  how  you  trust  him."  And  it  was  ad- 
judged for  the  defendant ;  for  it  is  not  any  slander  to  the  plaintiff,  but  good 
counsel  to  Dudley. 

Vanspike  v  CTry.w*  (1597),  Cro.  Eliz.  541  ;  1  Roll.  Abr.  67. 
So  where  defendant  said  of  the  plaintiff,  who  was  a  tradesman,  "  He  cannot 
stand  it  long,  he  will  be  a  bankrupt  soon  ; "  and  it  was  laid  as  special  damage 
in  the  declaration,  that  one  Lane  had,  in  consequence,  refused  to  trust  the 
plaintiff  for  a  horse.  Lane  was  the  only  witness  called  for  the  plaintiff  ;  and  it 
appearing  on  his  evidence,  that  the  words  were  not  spoken  maliciously,  but  in 
confidence  and  friendship  to  Lane,  and  by  way  of  warning  to  him,  and  that  in 
[*  219]  consequence  of  that  advice  he  did  not  trust  the  plaintiff  with  the  horse: 
Pratt,  C.  J.,  directed  the  jury,  that  though  the  words  were  otherwise  actionable 
yet  if  they  should  be  of  opinion  that  the  words  were  not  spoken  out  of  malice, 
but  in  the  manner  before  mentioned,  they  ought  to  find  the  defendant  not 
guilty  and  they  did  so  accordingly. 

Hewer  v.  Dowson  (1765),  B.  N,  P.  8. 
The  plaintiff  was  a  maltster,  and  had  bought  a  quantity  of  barley  of  Butler. 
The  defendant  said  to  Butler,  "  Don't  trust  that  damned  rogue,  he  will  never 
pay  you  a  farthing.  Have  you  sold  King  some  barley  ?  You  mind  and  have 
the  money  for  it  before  it  goes  out  of  the  waggon,  or  you  will  never  have  it." 
Butler,  in  consequence,  refused  to  deliver  the  barley  till  he  was  paid  for  it. 
Lord  Abinger,  C.  B,,  directed  the  jury  that  the  defendant's  words  were  unpriv- 
ileged, because  they  were  volunteered.  Verdict  for  the  plaintiff  accordingly. 
Damages,  one  farthing, 

King  v.  Watts,  8  C.  &  P.  614. 
Defendant  met  Clark  in  the  road,  and  asked  him  if  he  had  sold  his  timber 
yet.  Clark  replied  that  Benn-tt  (plaintiff)  was  going  to  have  it.  Defendant 
asked  if  he  was  going  to  pay  ready  money  for  it,  and  being  answered  in  the 
negative,  said,  "Then  you'll'lose  your  timber  ;  for  Bennett  owes  me  about  £25, 
and  I  am  going  to  arrest  him  next  week  for  my  money,  and  your  timber  will 
help  to  pay  my  "debt."  Clark  consequently  declined  to  sell  the  timber  to  the 
plaintiff.  Plaintiff  really  did  owe  defendant  about  £23.  Coltman,  J.,  directed 
the  jury  that  the  caution  was  altogether  unprivileged  because  volunteered  :  and 
they  therefore  found  a  verdict  for  the  plaintiff,  damages  40s.  The  Court  of 
C.  P.  were  equally  divided  on  the  question  whether  the  judge  was  right  in  his 
direction,  and  therefore  the  verdict  for  the  plaintiff  stood. 

Bennett  v.  Beacon,  2  C,  B,  628  ;  15  L.  J.  C.  P.  289. 
A  former  friend  of  the  plaintiff,  who  knew  all  about  plaintiff's  past  wild  life, 
hearing  plaintiff  was  about  to  be  married,  wrote,  after  consulting  the  clergy- 
man of  his  parish  to  the  lady,  to  whom  he  was  apparently  a  stranger,  disclosing 
plaintiff's  antecedents.  Hill,  J.,  said,  that  if  the  jury  thought  the  defendant 
reasonably  believed  that  it  was  his  duty  to  write  the  letter  he  should  hold  it  to 
be  privileged  ;  but  the  jury  found  a  verdict  for  the  plaintiff  ;  damages,  Is ; 
[obviously  a  compromise] . 

Ex  relatione  Coleridge,  Q.  C,  15  C,  B.  N.  S,  410,  411. 
It  is  apparently  clear  law  in  America,  that  though  any  near  relative  may 
write  such  a  letter  warning  a  lady  not  to  marry  the  plaintiff,  no  mere  friend, 
not  related  to  her,  may  volunteer  such  advice.     Though  the  friendship  may  be 

(237) 


166  QUALIFIED    PRIVILEGE. 

most  intimate  and  of  long  standing,  there  is  no  privilege  unless  the  lady  has 
consulted  her  friend  on  the  matter. 

Krebs  v.  Oliver,  12  Gray  (78  Mass.)  239. 

Count  Joannes  v.  IS<  mutt,  5  Allen  (87  Mass.),  169. 

Byam  v.  Collins  (1886),  39  Hun.  (46  N.  Y.  Supr.  Ct.),  204. 

A.  and  B.  were  shareholders  in  the  same  railway  company.  B.  was  also  a 
River  Commissioner,  The  plaintiff,  who  had  been  engineer  to  the  railway 
company,  sought  to  be  elected  engineer  to  the  River  Commissioners,  but  was 
unsuccessful,  Shortly  after  the  election,  A.  wrote  to  B.  that  the  plaintiff's 
[*  220]  mismanagement  or  ignorance  had  cost  the  railway  company  several 
thousand  pounds.     Held  not  a  privileged  communication. 

Brooks  v.  Blanshard,  1  Cr.  &  Mees.  779  ;  3  Tyrw.  844. 

The  defendant  was  a  director  of  two  companies  ;  of  one  of  which  the  plain- 
tiff was  secretary,  of  the  other  auditor.  The  plaintiff  was  dismissed  from  Ins 
post  as  secretary  of  the  first  company  for  alleged  misconduct.  Thereupon  the 
defendant,  at  the  next  meeting  of  the  board  of  the  second  company,  informed 
his  co-directors  of  this  fact,  and  proposed  that  he  should  also  be  dismissed  from 
his  post  of  auditor  of  the  second  company.  Held  a  privileged  communication. 
Harris  v.  Thompson,  13  C.  B.  333. 

Dawes  told  the  defendant  that  he  intended  to  employ  the  plaintiff  as  surgeon 
and  accoucheur  at  his  wife's  approaching  confinement ;  the  defendant  there- 
upon advised  him  not  to  do  so,  on  account  of  the  plaintiff's  alleged  immorality. 
Martin,  B.,  thought  this  was  a  privileged  communication,  though  it  was  volun- 
teered. 

Dixon  v.  Smith,  29  L.  J.  Ex.  125  ;  5  H.  &  N.  450. 

The  directors  of  a  charity  were  informed  that  the  plaintiff,  their  former  col- 
lector, continued  to  solicit  and  receive  subscriptions  on  behalf  of  the  charity, 
although  dismissed  as  untrustworthy.  They  therefore  printed  at  the  end  of 
their  annual  report  a  "Caution  to  the  Public,"  warning  them  against  such 
imposture.  Held,  that  such  a  caution  was  privileged,  if  published  bond  fide  in 
the  belief  that  the  statements  contained  in  it  were  true,  and  with  the  honest 
desire  of  protecting  the  interests  of  the  charity,  and  guarding  the  public 
against  imposture,  and  not  with  any  malicious  desire  of  defaming  the  plaintiff, 
with  whom  they  had  quarrelled  ;  and  that  it  was  for  the  jury  to  decide  with 
which  intent  it  was  in  fact  published. 

Gassett  v.  Gilbert  and  others,  6  Gray  (72  Mass.),  94. 

The  defendant,  a  parishioner,  mentioned  to  her  rector  a  report,  widely  cur- 
rent in  the  parish,  that  the  rector  and  his  solicitor  were  grossly  mismanaging  a 
trust  estate,  and  defrauding  the  widow  and  orphans,  6zc.  The  solicitor  brought 
an  action  for  the  slander.  The  jury  found  that  she  did  so  in  the  honest  belief 
that  it  was  a  benefit  to  the  rector  to  inform  him  of  the  report  in  order  that  he 
might  clear  his  character.  The  Court  held  that  the  statement  was  clearly  priv- 
ileged so  far  as  the  rector  was  concerned,  and  that  as  the  statement  was  not 
divisible  it  must  also  be  privileged  with  regard  to  the  plaintiff. 

Dairies  v..  Sneed,  L.  R.  5  Q.  B.  611 ;   39  L.  J.  Q.  B.  202  ;   23  L.  T. 
609. 

Information  given  to  a  vicar  absent  on  the  continent  as  to  rumours  affecting 
the  moral  character  of  the  curate  he  has  left  in  charge  is  privileged  :  so  is  sim- 
ilar information  given  verbally  to  the  absent  vicar's  solicitor,  with  a  view  to  his 
informing  the  vicar,  should  he  think  it  right  to  do  so  :  so  is  similar  information 
given  to  a  neighboring  vicar  who  has  asked  the  curate  in  charge  to  preach  for 
him. 

Clark  v.  Molyneux,  3  Q.  B.  D.  237 ;  47  L.  J.  Q.  B.  230 ;  26  W.  R. 
104  ;  36  L.  T.  466  ;  37  L.  T.  694  ;  14  Cox,  C.  C.  10, 

The  plaintiff,  an  architect,  had  been  employed  by  a  certain  committee  to  super- 
intend and  carry  out  the  restoration  of  Skirlaugh  Church  ;  thereupon  the  defend- 
ant, who  was  a  clergyman  residing  in  the  county,  but  who  had  no  manner 
[*  221]  of  interest  in  the  question  of  the  employment  of  the  plaintiff  to  execute 
the  work,  wrote  a  letter  to  a  member  of  the  committee  saying,  "  I  see  that  the 
restoration  of  Skirlaugh  Church  has  fallen  into  the  hands  of  an  architect  who 
is  a  Wesleyan  and  can  have  no  experience  in  church  work.     Can  you  not  do 

(238) 


INFORMATION  VOLUNTEERED.  107 

something  to  avert  the  irreparable  loss  which  must  be  caused  if  any  of  the 
masonry  of  this  ancient  gem  of  art  be  ignorantly  tampered  with  ?  "  The  letter 
was  clearly  a  libel  on  the  plaintiff  in  the  way  of  his  profession  or  calling. 
Bramwell,  L.  J.,  though!  it  was  privileged,  because  the  restoration  was  a  mat- 
ter of  public  interest,  and  one  in  which  a  neighbouring  clergyman  would  be 
especially  interested;  but  a  special  jury  found  thai  there  was  evidence  ot 
malice  in  the  unfair  expressions  employed,  and  gave  the  plaintiff  £50  damages. 
But  Kelly,  C.  B.,  on  a  motion  for  a  new  trial,  declared  thai  he  was  "  at  a  loss 
to  see  what  privilege  the  defendant  possessed,  under  the  circumstances  of  the 
case,  to  interfere  between  the  committee  and  the  plaintiff  in  respect  of  the  con- 
tract between  them ;  the  defendant  being  neither  the  patron,  nor  the  minister 
of  the  church,  nor  a  member  of  the  committee  appointed  to  effect  its  restoration, 
nor  even  a  parishioner." 

[It  did  not  appear  that  the  defendant  was  even  a  subscriber  to  the  restoration 
fund.] 

Botterill  and  another  v.  Whitehead,  41  L.  T.  588. 

Two  ladies,  A.  and  B.,  were  interested  in  the  plaintiff,  a  lady  who  ''had 
seen  better  days."  A.  applied  to  the  Charity  Organization  Society  for  infor- 
mation concerning  the  plaintiff.  Defendant,  the  secretary  of  that  society,  drew 
up  and  sent  A.  a  report  unfavourable  to  the  plaintiff',  and  gave  A.  permission 
to  show  it  to  B.  Held,  that  the  publication  of  this  report  both  to  A.  and  to  B. 
was  privileged,  although  B.  had  made  no  inquiries  of  the  defendant,  and  was 
uot  a  member  of  the  society  or  in  any  way  connected  with  it. 

Waller  v.  Loch  (C.  A.),  7  Q.  B.  D.  619  ;  51  L.  J.  Q.  B.  274  ;  30  W. 

R.  18  ;  45  L.  T.  242  ;  46  J.  P.  484. 
Clover  v.  Royden,  L.  R.  17  Eq.  190  ;  43  L.  J.  Ch.  665. 

(iii.)  Information  as  to  crime  or  misconduct  of  others. 

It  is  a  duty  which  every  one  owes  to  society  and  to  the  State  to 
assist  in  the  investigation  of  any  alleged  misconduct,  and  to  pro- 
mote the  detection  of  any  crime.  All  information  given  bona  fide 
in  response  to  any  inquiries  made  with  this  object  is  clearly  privi- 
leged {ante,  p.  204).  But  this  duty  does  not  arise  merely  when  con- 
fidential inquiries  are  made.  If  facts  come  under  my  knowledge 
which  lead  me  reasonably  to  conclude  that  a  crime  has  been,  or  is 
about  to  be,  committed,  "it  is  my  duty  at  once  to  give  information 
to  the  police  or  to  the  persons  interested. 

"  When  it  comes  to  the  knowledge  of  any  one  that  a  [*  222] 
crime  has  been  committed,  a  duty  is  laid  on  that  person,  as  a  citizen 
of  the  country,  to  state  to  the  authorities  what  he  knows  respecting 
the  commission  of  the  crime  ;  and  if  he  states  only  what  he  knows 
and  honestly  believes  he  cannot  be  subjected  to  an  action  of  dam- 
ages merely  because  it  turns  out  that  the  person  as  to  whom  he  has 
given  the  information  is,  after  all,  not  guilty  of  the  crime."  (Per 
Inglis,  Lord  President,  in  Lighibody  v.  Gordon,  9  Scotch  Sessions 
Cases,  4th  Series,  937,  938.) 

So  all  material  statements  made  by  the  persons  interested  in  the 
detection  of  a  crime,  during  their  investigations  and  relevant  there- 
to, are  privileged.  "  For  "the  sake  of  public  justice,  charges  and 
communications  which  would  otherwise  be  slanderous,  are  protected 
if  bond  fide  made  in  the  prosecution  of  an  inquiry  into  a  suspected 
crime."  (Per  Coleridge,  J.,  in  Padmore  v.  Lawrence,  11  A.  &  E. 
382.)  See  also  the  remarks  of  Lord  Eldon,  C.  J.,  in  Johnson  v. 
Evans,  3  Esp.  33,  and  of  Lord  Ellenborough  in  Foicler  et  nx.  v. 
Homer,  3  Camp.,  at  p.  295.     But  such  charges  must  be  made  in  the 

(239) 


1G8  QUALIFIED    PRIVILEGE. 

honest  desire  to  promote  the  ends  of  justice,  and  not  with  any 
spiteful  or  malicious  feeling  against  the  person  accused,  nor  with 
the  purpose  of  obtaining  any  indirect  advantage  to  the  accuser. 
Nor  should  serious  accusations  be  made  recklessly  or  wantonly; 
they  must  always  be  warranted  by  some  circumstances  reasonably 
arousing  suspicion.  And  they  should  not  be  made  unnecessarily  to 
persons  unconcerned,  nor  before  more  persons,  nor  in  stronger  lan- 
guage, than  necessary.     (Roberts  v.  Richards,  3  F.  &  F.  507.) 

Illustrations. 

Defendant  discharged  his  servant,  the  plaintiff,  and  sent  for  a  constable, 
intending  to  give  her  in  charge.  All  that  he  said  to  the  constable  in  the  course 
of  his  charge  and  complaint  against  the  plaintiff  is  privileged,  although  ulti- 
mately he  did  not  give  her  into  charge. 

Johnson  v.  Era  us.  Clerk,  3  Esp.  82. 
Defendant  was  a  haberdasher.  On  a  Saturday  evening,  wdiile  he  was  absent, 
Mrs.  Fowler  came  into  his  shop  and  bought  some  goods.  Soon  after  she  was 
gone  his  shopman  missed  a  roll  of  riband,  and  mistakenly  supposed  that  she 
[*  223]  had  stolen  it,  but  did  not  then  pursue  her.  On  the  following  Monday, 
as  she  was  again  passing  the  shop,  the  shopman  pointed  her  out  to  the  defend- 
ant as  the  person  who  had  stolen  the  riband.  The  defendant  brought  her  into 
the  shop  and  accused  her  of  the  robbery,  which  she  positively  denied.  lie  then 
took  her  into  an  adjoining  room  and  sent  for  her  father,  to  whom  he  repeated 
the  accusation.  After  a  good  deal  of  altercation  she  was  allowed  to  go  home, 
and  there  the  matter  rested.     Lord  Ellenborough  decided  that  no  action  lay. 

Fowler  et  ux.  v.  Homer,  3  Camp.  294. 
Mensel  sent  his  servant,  the  plaintiff,  to  the  defendant's  shop  on  business ; 
while  there,  the  plaintiff  had  occasion  to  go  into  an  inner  room.  Shortly  after 
he  left,  a  box  wras  missed  from  that  inner  room.  No  one  else  had  been  in  the 
room  except  the  plaintiff.  The  defendant  thereupon  went  round  to  Mr.  Men- 
sel's,  and  calling  him  aside  into  a  private  room,  told  him  what  had  happened, 
adding  that  the  plaintiff  must  have  taken  the  box.  Later  on,  the  plaintiff  came 
to  the  defendant's  house,  and  the  defendant  repeated  the  accusation  to  him  ; 
but,  an  English  girl  being  present,  defendant  was  careful  to  speak  in  German. 
Both  communications  were  held  privileged,  if  made  wdthout  actual  malice  and 
in  the  bond  tide  belief  of  their  truth. 

Amann  v.  Damm,  8  C.  B.  N.  S.  597  ;    29  L.  J.  C.  P.  313  ;    7  Jur. 
N.  S.  47  ;  8  W.  R.  470. 

Hurtert  v.  Weines,  27  Iowa,  134. 

Dale  v.  Harris,  13  Browne  (109  Mass.),  193. 
Defendant  charged  the  plaintiff,  his  porter,  with  stealing  his  bed-ticks,  and 
with  plaintiff's  permission  subsequently  searched  his  house,  but  found  no 
stolen  property.  The  jury  found  that  defendant  bond  fide  believed  that  a  rob- 
bery had  been  committed  by  the  plaintiff,  and  made  the  charge  with  a  view  to 
investigation,  but  added,  "  The  defendant  ought  not  to  have  said  what  he  could 
not  prove."  Held,  that  this  finding  was  immaterial,  that  the  occasion  was 
privileged,  and  that  there  wTas  no  evidence  of  malice-  Judgment  for  the 
defendant. 

Howe  v.  Jones,  1  Times  L.  R.  19,  461. 

Fowler  et  ux.  v.  Homer,  3  Camp.  294. 
Farquharson  forged  the  name  "J."  Smith"  on  a  cheque  and  sent  a  boy  to 
present  it  and  get  the  money.  The  defendant  was  cashier  of  the  bank.  He 
looked  hard  at  the  boy,  and  satisfied  himself  as  he  thought  that  it  was  Smith's 
boy,  the  plaintiff,  and  so  gave  him  the  money.  When  inquiries  were  made, 
defendant  told  Smith  it  was  his  boy  who  presented  the  cheque,  and  described 
him  accurately.  He  told  the  detective  so  too.  Plaintiff  was  accordingly  tried 
along  with  Farquharson,  who  pleaded  guilty.  The  sheriff  found  the  charge 
not  proven  against  the  plaintiff.     Then  plaintiff  sued  defendant  and  recovered 

(240) 


CHARGE   OF   FELONY. 


169 


damages  £50,  by  a  verdict  of  eight  jurymen  to  four.     The  Court  set  the  verdict 
aside  on  the  ground  that  there  was  do  evidence  whatever  of  malic-. 

Lujhtbody  v.  Gordon,  9  Scotch  Sessions  Cases,  4th  Series,  !i:{4. 

Barton,  a  friend  of  the  defendant,  employed  a  builder,  the  plaintiff's  master, 
to  build  a  house  for  him:  the  defendant  informed  Barton  thai  the  plaintiff 
while  at  work  on  his  house  had  removed  some  quartering*.  Barton  complained 
to  the  master  builder,  who  came  down  to  the  defendant's  and  said,  "I  am  told 
you  say  that  you  saw  my  man  Kine  take  away  some  of  the  quarterings  f rom 
Mr.  Barton's  premises."  A  repetition  of  the  charge  made  then  to  the  plaintiff's 
master  without  malice  was  held  privileged,  and  as  the  plaintiff  had  not  called 
Barton  to  [*224]  prove  the  original  remark,  the  jury  found  tor  the  defendant, 
and  a  new  trial  was  refused.  Parke,  B.,  said,  "'  Is  a  man's  mouth  to  be  closed 
when  I  ask  him  if  he  has  seen  another  man  take  away  my  timber  '!  " 
Kine  v.  Swell,  3  M.  &  W.  297. 

[But  note  that  the  statement  made  to  Barton  would,  if  proved,  have  been 
probably  held  privileged  also,  although  voluntary,  as  he  was  the  owner  of  the 
property  alleged  to  have  been  stolen.] 

Certain  merchants  in  New  York,  believing  on  reasonable  grounds  that  they 
had  been  defrauded  by  plaintiff  and  others,  drew  up  an  agreement  reciting  that 
they  had  "  been  robbed  and  swindled"  by  plaintiff  and  others  named,  whom 
they  were  determined  to  prosecute,  and  promising  that  each  person  signing 
would  pay  his  fair  share  towards  the  expenses  of  the  prosecution,  &c.  This 
agreement  was  left  with  A.'s  manager  in  order  that  he  might  procure  A.'s  sig- 
nature thereto.     Held  a  privileged  publication. 

Klinck  v.  Colby  and  others,  1  Sickel  (4G  N.  Y.)  427. 

Defendant  accused  the  plaintiff,  in  the  presence  of  a  third  person,  of  stealing 
his  wife's  brooch  ;  plaintiff  wished  to  be  searched  ;  defendant  repeated  the 
accusation  to  two  women,  who  searched  the  plaintiff  and  found  nothing.  Sub- 
sequently it  was  discovered  that  defendant's  wife  had  left  the  brooch  at  a 
friend's  house.  Held,  that  the  mere  publication  to  the  two  women  did  not 
destroy  the  privilege  attaching  to  charges,  if  made  bond  fide  ;  but  that  all  the 
circumstances  should  have  been  left  to"the  jury,  who  should  determine  whether 
or  no  the  charge  was  made  recklessly  and  unwarrantably,  and  repeated  before 
more  persons  than  necessary. 

Padmore  v.  Lawrence,  11  A.  &  E.  380  ;  4  Jur.  458  ;    3  P.  &  D.  209. 
Jones  v.  Thomas,  34  W.  R.  104 ;  53  L.  T.  678  ;  2  Times  L.  R.  95. 

A  discharged  servant  of  the  defendant's  charged  plaintiff,  her  former 
manager,  with  embezzlement.  Defendant  went  to  plaintiff's  house,  and, 
finding  him  out,  said  to  his  wife,  "  He  has  robbed  me."  This  was  held  not  to 
be  privileged  ;  though  the  jury  found  that  defendant  spoke  in  the  performance, 
as  she  believed,  of  a  duty  and  in  the  bond  fide  belief  that  what  she  said  was 
true,  and  without  malice.  Judgment  for  the  plaintiff.  Damages  £5. 
Jones  v.  Williams,- 1  Times  L.  R.  572. 

Plaintiff  assaulted  the  defendant  on  the  highway  ;  defendant,  meeting  a  con- 
stable, requested  him  to  take  charge  of  the  plaintiff,  and  the  constable  refusing 
to  arrest  the  plaintiff  unless  the  defendant  would  charge  him  with  felony, 
the  defendant  did  so.  Held,  on  demurrer  to  the  defendant's  plea  setting  up 
these  circumstances,  that  they  did  not  render  the  charge  of  felony  a  priv- 
ileged publication. 

Smith,  v.  Hodgeskins,  Cro.  Car.  276. 

Plaintiff  was  defendant's  shopman  in  Plymouth  till  Nov.  5th,  1834,  when  he 
left  and  went  to  London,  receiving  from  the  plaintiff  a  good  character  for  steadi- 
ness, honesty,  and  industry.  Early  in  December  defendant  found  one  of  his 
female  servants  in  possession  of  some  of  his  goods.  When  charged  with 
stealing  them,  she  said  that  the  plaintiff  gave  them  to  her.  Thereupon  the 
defendant,  though  he  knew  the  girl  was  of  bad  character,  went  to  the  plaintiff's 
relations  in  Plymouth  and  charged  him  with  felony,  and  eventually  induced 
them  to  give  him  fifty  pounds  to  say  no  more  about  the  matter.  Held,  that  the 
charge  of  felony  was  not  made  bond  fide  with  any  intention  to  promote  inves- 
tigation or  [*225]  prosecution,  and  was  altogether  unprivileged  ;  and  that  no 
question  as  to  malice  in  fact  should  have  been  left  to  the  jury. 
Hooper  v.  Truscott,  2  Bing.  N.  C.  457  ;  2  Scott,  672. 
(241) 


170  (QUALIFIED    PBIYILEGE! 

• 

Plaintiff  and  defendant  wen;  neighbours  and  both  drapers.  Defendant,  from 
facts  which  came  to  his  knowledge  and  which  were  sufficient  to  arouse  sus- 
picion, ('(included  that  he  was  being  robbed  by  one  of  his  assistants  with  the 
collusion  of  the  plaintiff.  lie  went  to  A.,  in  whose  employ  plaint  ill'  had 
formerly  been,  and  inquired  as  to  plaintiff's  honesty.  A.  asked,  "What  do 
you  want  to  know  for?"  Defendant  replied,  "Oh,  the  man  has  robbed  me; 
I  mean  to  get  him  imprisoned."  Defendant  then  made  inquiries  of  B.,  one  of 
his  own  assistants,  who  said  she  knew  nothing  at  all  of  the  matter,  whereupon 
defendant  repeated  what  lie  had  said  to  A.  Damages  £5.  Lindley,  J.,  on 
furl  her  consideration,  held  both  statements  unprivileged,  as  neither  A.  nor  B. 
was  concerned  in  or  connected  with  the  mailer.  , 

Harrison,  v.  Frascr,  29  W.  li.  052. 

Charges    against    Public   Officials. 

So,  too,  it  is  the  duty  of  'all  who  witness  any  misconduct  on  the 
part  of  a  magistrate  or  any  public  officer  to  bring  such  misconduct 
to  the  notice  of  those  whose  duty  it  is  to  inquire  into  and  punish  it; 
and,  therefore,  all  petitions  and  memorials  complaining  of  such 
misconduct,  if  prepared  bona  fide  and  forwarded  to  the  proper 
authorities,  are  privileged.  And  it  is  not  necessary  that  the  inform- 
ant or  memorialist  should  be  in  any  way  personally  aggrieved  or 
injured  :  for  all  persons  have  an  interest  in  the  pure  administration 
of  justice  and  the  efficiency  of  our  public  offices  in  all  departments 
of  the  State.  So  with  ecclesiastical  matters  ;  all  good  churchmen 
are  concerned  to  prevent  any  scandal  attaching  to  the  Church.  If, 
howTever,  the  informant  be  the  person  immediately  affected  by  the 
misconduct  complained  of,  he  can  claim  privilege  also  on  the 
ground  that  he  is  acting  in  self-defence.  (See  the  next  class  of 
cases,  p.  229.)  Every  communication  is  privileged  which  is  made 
"bond fide  with  a  view  to  obtain  redress  for  some  injury  received, 
or  to  prevent  or  punish  some  public  abuse.  .  .  .  This  privilege, 
however,  must  not  be  abused  ;  for  if  such  a  communication  be 
made  maliciously  and  without  probable  cause",  the  pretence  under 
which  it  is  made,  [*  226]  instead  of  furnishing  a  defence,  will 
aggravate  the  case  of  the  defendant."  (Per  Best,  J.,  in  Fairman  v. 
Ives,  5  B.  &'  Aid.  647,  648.)  And  a  defendant  will  be  taken  to 
have  acted  maliciously,  if  he  eagerly  seizes  on  some  slight  and 
frivolous  matter,  and  without  any  inquiry  into  the  merits,  without 
even  satisfying  himself  that  the  account  of  the  matter  that  has 
reached  him  is  correct,  hastily  concludes  that  a  great  public  scandal 
has  been  brought  to  light  which  calls  for  the  immediate  interven- 
tion of  the  Crown.     {Robinson  v.  May,  2  Smith,  3.) 

Illustrations. 

A  memorial  to  the  Home  Secretary  or  to  the  Lord  Chancellor,  complaining  of 
misconduct  on  the  part  of  a  county  magistrate,  and  praying  for  his  removal 
from  the  commission  of  the  peace,  is  privileged. 

Harrison  v.  Bush,  5  E.  &  B.  344  ;  25  L.  J.  Q.  B.  25,  99  ;  1  Jur.  K 
S.  846  ;  2  Jur.  N.  S.  90. 
So  is  a  petition  to  the  House  of  Commons  charging  the  plaintiff  with  oppres- 
sion and   extortion  in  his  oflice  of  Vicar-General   to  the  Bishop  of  Lincoln, 
although  the  petition  was  printed,  and  copies  distributed  amongst  the  members. 
Lake  v.  King,  1  Lev.  240  ;  1  Saund.  131  ;  Sid.  414  ;  1  Mod.  58. 
The  defendant  deemed  it  his  duty  as  a  churchman  to  write  to  the  Bishop  of 

(242) 


CHARGES    AGAINST    PUBLIC    OFFICIALS.  1*71 

London  informing  him  that  a  report  was  current  in  the  parish  of  Bethnal 
Green  that  a  stand-up  fight  had  occurred  in  the  schoolroom  of  St.  James  the 
Great  between  the  plaintiff,  the  incumbent,  and  the  school-master,  during 
school  hours.  The  letter  was  held  privileged  under  the  Church  Discipline  Act, 
3  &  4  Vict.  c.  86,  s.  3,  although  the  defendant  did  not  live  in  the  district  of 
which  the  plaintiff  was  incumbent,  but  in  an  adjoining  district  of  the  same 
parish. 

James  v.  Boston,  2  B.  &  K.  4. 
A  letter  written  to  the  Postmaster-General,  or  to  the  secretary  of  the  General 
Post  Office,  complaining  of  misconduct  in  a  postmaster,  is  not  a  libel,  if  it  was 
written  as  a  bond  fide  complaint,  to  obtain  redress  for  a  grievance  thai  the  party 
really  believed  he   had  suffered  ;  and  particular  expressions  are  not  to  be  too 
strictly  scrutinized,  if  the  intention  of  the  defendant  was  good. 
•      Woodward  v.  Louder,  0  C.  &  P.  548. 
Blake  v.  Pilford,!  Moo.  &  Rob.  198. 
The  defendant  drafted  a  memorial  to  the  Home  Secretary  on  a  matter  within 
his  jurisdiction,  and  read  it  to  M.  in  the  presence  of  M.'s  wife,  and  asked  M.  to 
sign  it.     M.  signed  it,  and  the  defendant  then  sent  it  to  the  Home  Secretary. 
Grove,  J.,  held  that  both  the  petition  and  the  conversation  with  M.  were  prima 
facie  privileged. 

Spaekman  v.  Gibney,  Bristol  Spring  Assizes,  1878. 
The  plaintiff  was  a  sanitary  inspector  under  the  statute  41  &  42  Vict,  c  74, 
s.  42,  appointed  by  the  local  authority,  but  removable  by  the  Privy  Council ; 
[*  227]  the  defendant  addressed  a  letter  to  the  Privy  Council,  charging  the 
plaintiff  with  corruption  and  misconduct  in  his  office.  Held,  that  no  action  lay 
without  proof  of  malice. 

Proctor  v.  Webster,  16  Q.  B.  D.  112;  55  L.  J.  Q.  B.  150  ;  53  L.  T.  765. 
Wieman  v.  Mabee,  45  Mich.  484  ;  40  Amer.  R.  477. 

But  in  seeking  redress,  the  defendant  must  be  careful  to  apply 
to  some  person  who  has  jurisdiction  to  entertain  the  complaint,  or 
power  to  redress  the  grievance,  or  some  duty  or  interest  in  connec- 
tion with  it.  Statements  made  to  some  stranger  who  lias  nothing 
to  do  with  the  matter  cannot  be  privileged.  If  the  defendant 
applies  to  the  wrong  person,  through  some  natural  and  honest 
mistake  as  to  the  respective  functions  of  various  state  officials,  such 
slight  and  unintentional  error  will  not  take  the  case  out  of  the 
privilege.  (Scarll  v.  Dixon,  4  F.  &  F.  250.)  But  if  lie  recklessly 
makes  statements  to  some  one  wdio  is,  as  he  ought  to  have  known, 
altogether  unconcerned  with  the  matter,  the  privilege  is  lost. 
(Hawk.  PI.  Cr.  1.  544.) 

And  where  the  informant  is  himself  the  person  aggrieved,  he 
should  be  very  careful  not  to  be  led  away  by  his  just  indignation 
into  misstating  facts,  or  employing  language  which  is  clearly  too 
violent  for  the  occasion. 

"  If,  without  express  malice,  I  make  a  defamatory  charge  which 
I  bond  fide  believe  to  be  true,  against  one  whose  conduct  in  the 
respect  defamed  has  caused  me  injury,  to  one  whose  duty  it  is,  or 
whose  duty  I  reasonably  believe  it  to  be,  to  enquire  into  and  redress 
such  injury,  the  occasion  is  privileged  ;  because  I  have  an  interest 
in  the  subject-matter  of  my  charge,  and  the  person  to  whom  I 
make  the  communication  has  on  hearing  the  communication  a  duty 
to  discharge  in  respect  of  it."  (Per  Fitzgerald,  B.,  in  Waring  v. 
JSPCaldin  (1S73),  7  Ir.  Rep.  C.  L.  at  p.  288. 

(243) 


172  QUALIFIED    PRIVILEGE. 


IUustrations. 


"  A  petition  to  the  King  upon  matters  in  which  the  Crown  cannot  directly 
interfere"  is  privileged. 

.Per  Best,  J.,  5  B.  &  Aid.  648. 
An  elector  of  Frome  petitioned  the  Home  Secretary,  stating  that  the  plaintiff, 
[*228]  a  magistrate  of  the  borough,  had  made  speeches  inciting  to  a  breach  of 
the  peace,  and  praying  for  an  inquiry,  and  that  1  lie  Home  Secretary  should 
advise  her  Majesty  to  remove  the  plaintiff  from  the  commission  of  the  peace. 
Such  petition  was  held  to  he  privileged,  although  it  should  more  properly  have 
been  addressed  to  the  Lord  Chancellor. 

Harrison  v.  Bush,  5  E.  &  B.    344 ;   25  L.  J.  Q.    B.  23,  59  ;    1   Jur. 

N.  S.  846  ;  2  Jur.  N.  S.  90. 
Scarll  v.  Dixon,  4  F.  &  F.  250,  ante,  p.  212. 
The  plaintiff  was  about  to  be  sworn  in  as  a  paid  constable,  by  the  justices, 
when  the  defendant,  a  parishioner,  made  a  statement  against  the  plaintiff's 
character  in  the  hearing  of  several  by-standers.  Held,  that  even  if  such  state- 
ment ought  rather  to  have  been  made  to  the  vestry  who  drew  up  the  list  of 
constables  whom  the  justices  were  to  swear  in,  still  it  was  privileged,  if  made 
bona  fide  in  furtherance  of  the  ends  of  justice. 

Kershaw  v.  Bailey,  1  Ex.  743 ;  17  L.  J.  Ex.  129. 
A  letter  to  the  Secretary  at  War,  with  the  intent  to  prevail  on  him  to  exert 
his  authority  to  compel  the  plaintiff  (an  officer  of  the  army)  to  pay  a  debt  due 
from  him  to  defendant,  was  held  privileged,  although  the  Secretary  at  War  had 
no  direct  power  or  authority  to  order  the  plaintiff  to  pay  his  debt.  "  It  was  an 
application,"  says  Best,  J.,  "for  the  redress  of  a  grievance,  made  to  one  of  the 
King's  ministers,  who,  as  the  defendant  honestly  thought,  had  authority  to 
afford  him  redress." 

,  Fairman  v.  Ives,  5  B.  &  Aid.  642  ;  1  Chit,  85  ;  1  D.  &  R.  252. 
A  timekeeper  employed  on  public  works,  on  behalf  of  the  Board  of  Works, 
wrote  a  letter  to  the  secretary  of  the  Board,  imputing  fraud  to  the  contractor. 
Blackburn,  J.,  directed  the  jury  that  if  they  thought  the  letter  was  written  in 
good  faith  and  in  the  discharge  of  what  the  defendant  considered  his  duty  to 
his  employers,  it  was  privileged,  although  such  a  complaint  should  have  been 
addressed  to  Mr.  Harris,  the  resident  engineer. 
Scarll  v.  Dixon,  4  F.  &  F.  250. 

Tompson  v.  Dashwood,  11  Q.  B.  D.  43 ;  52  L.  J.  Q.  B.  425  ;  48  L.  T. 
943  ;  48  J.  P.  55. 
The  plaintiff  was  a  teacher  in  a  district  school  ;  the  inhabitants  of  the  district 
prepared  a  memorial  charging  the  plaintiff  with  drunkenness  and  immorality, 
which  they  sent  to  the  local  superintendent  of  schools.  It  ought  strictly  to 
have  been  sent  to  the  trustees  of  that  particular  school  in  the  first  instance,  and 
such  trustees  would  then,  if  they  thought  fit,  in  due  course  forward  it  to  the 
local  superintendent  for  him  to  take  action  upon  it.  Held,  that  the  publication 
was  still  prima  facie  privileged, "although,  by  a  mistake  easily  made,  it  had  been 
sent  to  the  wrong  quarter  in  the  first  instance. 

Mclntyre  v.  McBean,  13  Up.  Canada  Q.  B.  Rep.  534. 
But  where  the  defendant  wrote  a  letter  to  the  Home  Secretary  complaining 
of  the  conduct  of  the  plaintiff,  a  solicitor,  as  clerk  to  the  borough  magistrates, 
this  was  held  not  to  be  privileged,  because  Sir  James  Graham  had  no  power  or 
jurisdiction  whatever  over  the  plaintiff.  There  was  moreover  evidence  of 
malice. 

Blagg  v.  Sturt,  10  Q.  B.  899  ;  16  L,  J.  Q.  B.  39  ;  8  L.  T.  (Old  S.) 
135:  11  Jur.  101,  post,  p.  279. 
An  Irish  coroner  sent  to  the  Chief  Secretary  of  Ireland  a  report  of  an  inquest 
he  had  held  on  the  body  of  an  out-door  pauper,  and  at  which  the  plaintiff,  who 
was  [*229]  the  relieving  officer,  had  given  evidence.  He  mentioned  in  this 
report  that  the  parish  priest,  who  happened  to  be  in  court,  stated  publicly  at 
the  conclusion  of  plaintiff's  evidence,  "This  is  nothing  short  of  perjury." 
Held,  that  this  portion  of  the  report  at  all  events  was  not  privileged,  as  the 
Chief  Secretary  could  have  no  interest  in  hearing  Father  Callary's  opinion  of 
the  plaintiff's  evidence. 

Lyiuvm  v.  Oowing,  6  L.  R.  Ir.  259. 
(244) 


STATEMENTS  IN     SELF-DEFENCE.  173 

B.  Communications  made  in  self-defence. 
(iv.)  Statements  necessary  to  protect  defendant's  private  interests. 

Any  communication  made  by  the  defendant  is  privileged  which 
a  due  regard  to  his  own  interest  renders  necessary.  He  is  entitled 
to  protect  himself.  But  in  such  cases  it  must  clearly  appear  not 
merely  that  some  such  communication  was  necessary,  but  that  he 
was  compelled  to  employ  the  very  words  complained  of.  If  he 
could  have  done  all  that  his  duty  or  interest  demanded  without 
libelling  or  slandering  the  plaintiff,  the  words  are  not  privileged. 
Thus,  it  is  very  seldom  necessary  in  self-defence  to  impute  evil 
motives  to  others,  or  to  charge  your  adversary  with  dishonesty  or 
fraud. 

So,  too,  in  cases  where  some  such  communication  is  necessary 
and  proper  in  the  protection  of  the  defendant's  interests,  the  privi- 
lege may  be  lost  if  the  extent  of  its  publication  be  excessive.  I  am 
not  entitled  to  write  to  the  Times  because  some  one  has  cast  a  slur 
on  me  at  a  private  meeting  of  the  board  of  guardians  ;  in  fact  by  so 
doing  I  take  the  surest  method  of  disseminating  the  charge  against 
myself.  So  with  an  advertisement  inserted  in  a  newspaper,  defam- 
atory of  the  plaintiff  ;  if  such  advertisement  be  necessary  to  protect 
the  defendant's  interest,  or  if  advertising  [*  230]  was  the  only  way 
of  effecting  the  defendant's  object  and  such  object  is  a  lawful  one, 
then  the  circumstances  excuse  the  extensive  publication.  But  if  it 
was  not  necessary  to  advertise  at  all,  or  if  the  defendant's  object 
could  have  been  equally  well  effected  by  an  advertisement  which 
did  not  contain  the  words  defamatory  of  the  plaintiff,  then  the 
extent  given  to  the  announcement  is  evidence  of  malice  to  go  to 
the  jury.  (Brown  v.  Croome.  2  Stark.  297  ;  and  Lay  v.  Zawson, 
4  A.  &  E.  795,  overruling,  or  at  least  explaining  Delany  v.  Jones, 
4  Esp.  191.  And  see  StocJcley  v.  Clement,  4  Bing.  162  ;  12  Moore, 
376  ;  Head  v.  Briscoe  et  ux.,  5  C.  &  P.  485  ;  B.  v.  Enes  (1732), 
Andr.  229  ;  4  Bacon's  Abr.  Libel  A.  (2),  p.  452  ;  and  Gassett  v. 
Gilbert  and  others,  6  Gray  (72  Mass.),  94,  ante,  p.  220.) 

Illustrations. 

The  plaintiff,  a  trader,  employed  an  auctioneer  to  sell  off  his  goods,  and 
otherwise  conducted  himself  in  such  a  way  that  his  creditors  reasonably  con- 
cluded that  he  had  committed  an  act  of  bankruptcy.  One  of  them,  the  defend- 
ant, thereupon  sent  the  auctioneer  a  notice  not  to  pay  over  the  proceeds  of  the 
sale  to  the  plaintiff,  "he  having  committed  an  act  of  bankruptcy."  Held,  by 
the  majority  of  the  Court  of  C.  P.  that  this  notice  was  privileged,  as  being  made 
in  the  honest  defence  of  defendant's  own  interests. 

Blnckham  v.  Pugh,  2  C.  B.  611 ;  15  L.  J.  C.  P.  290. 
So  where  an  agent  in  temperate  language  claims  a  right  for  his  principal, 
or  a  solicitor  for  his  client. 

Hargrave  v.  Le  Breton,  4  Burr.  2422. 

Steward  v.  Young,  L.  R.  5  C.  P.  122  ;    39  L.  J.  C.  P.  85  ;  18  W.  R. 
492  ;  22  L.  T.  168. 
Even  without  express  authority. 

Watson  v.  IleynMs,  Moo.  &  Mai.  1. 
Delivery  to  a  third  person  for  service  on  the  plaintiff  of  a  statutory  notice 

(245) 


174  Ql'ALIFIKD    PRIVILEGE. 

under  the  Insolvent  Act  of  1869  (Nova  Scotia)  is  primd  facie  privileged,  if  it  be 
made  bond  fide  with  the  object  of  protecting  defendant's  rights. 

Bank  of  British  North  America  v.  Strong,  1  App.  Cas.  307  ;  34  L.  T. 
627. 

The  defendant  had  dismissed  the  plaintiff  from  his  service  on  suspicion  of 
theft,  and,  upon  the  plaintiff  coming  to  his  counting-house  for  his  wages,  called 
in  two  other  of  his  servants,  and  addressing  them  in  the  presence  of  the  plain- 
tiff,  said,  "  I  have  dismissed  that  man  for  robbing  me:  do  not  speak  to  him 
any  more,  in  public  or  in  private,  or  I  shall  think  yon  as  bad  as  him."  Held, 
a  privileged  communication,  on  the  ground  that  it  was  the  duty,  and  also  the 
[*231  ]  interest,  of  the  defendant  to  prevent  his  servants  from  associating  with 
such  a  person. 

Snmerville  v.  Hawkins,  10  C.  B.  583 ;  20  L.  J.  C.  P.  131  ;  16  L.  T. 
(Old  8.)  283  ;  5  Jur.  450. 

And  see  Manly  v.  Witt  )  18  C.  B.  541  ;  25  L.  J.  C.  P.  294  ;  2  Jur. 

Eastmeadw.  Witt      f     N.  S.  1004. 
The  occupier  of  a  house  may  complain  to  the  landlord  or  Ins  agent  of  the 
workmen  he  has  sent  to  repair  the  house. 

Toocjood  v.  Spyring,  1  C.  M.  &  R.  181  ;  4  Tyrw.  582. 

Kine  v.  Seicell,  3  M."&  W.  297. 
A  customer  may  call  and  complain  to  a  tradesman  of  the  goods  he  supplies 
and  the  manner  in  which  he  conducts  his  business  ;  but  he  should  be  careful 
to  make  the  complaint  in  the  hearing  of  as  few  persons  as  possible,  and  in 
moderate  language. 

Oddy  v.  Ld.  Geo.  Paulet,  4  F.  &  F.  1009. 

Crisp  v.  Gill,  29  L.  T.  (Old  S.)  82. 
An  insurance  company  may  inform  a  shipowner  that  they  must  refuse  to 
insure  his  vessel  any  longer  if  he  put  a  particular  master  in  command  of  her. 

Hamon  v.  Falle,  4  App.  Cas.  247  ;  48  L.  J.  P.  C.  45. 
Defendant  claimed  rent  of  plaintiff  ;  plaintiff's  agent  told  defendant  that 
plaintiff  denied  his  liability  ;  defendant  thereupon  wrote  to  the  agent,  alleging 
facts  in  support  of  his  claim,  and  adding,  "  This  attempt  to  defraud  me  of  the 
produce  of  the  land  is  as  mean  as  it  is  dishonest."  Held  that  the  publication,  in 
these  terms,  was  not  privileged,  for  one  can  claim  a  debt  without  imputing 
fraud,  and  that  the  judge  was  justified  in  directing  the  jury  that  it  was  libel. 

Tuson  v.  Evans,  12  A.  &  E.  733. 
Lord  Denman,  in  delivering  the  judgment  of  the  Court,  said,  "  Some  remark 
from  the  defendant  on  the  refusal  to  pay  the  rent  was  perfectly  justifiable, 
because  his  entire  silence  might  have  been  construed  into  an  acquiescence  in 
that  refusal,  and  so  might  have  prejudiced  his  case  upon  any  future  claim  ;  and 
the  defendant  would,  therefore,  have  been  privileged  in  denying  the  truth  of  the 
plaintiff's  statement.  But,  upon  consideration,  we  are  of  opinion  that  the  learned 
judge  was  quite  right  in  considering  the  language  actually  used  as  not  justified 
by  the  occasion.  Any  one,  in  the  transaction  of  business  with  another,  has  a 
right  to  use  language  bond  fide,  which  is  relevant  to  that  business,  and  which  a 
due  regard  to  his  own  interest  makes  necessary,  even  if  it  should  directly  or  by 
its  consequences,  be  injurious  or  painful  to  another  ;  and  this  is  the  principle 
on  which  privileged  communication  rests  ;  but  defamatory  comments  on  the 
motives  or  conduct  of  the  party  with  whom  he  is  dealing  do  not  fall  within  that 
ride.  It  was  enough  for  the  defendant's  interest,  in  the  present  case,  to  deny 
the  truth  of  the  plaintiff's  assertion  :  to  characterize  that  assertion  as  an 
attempt  to  defraud,  and  as  mean  and  dishonest,  was  wholly  unnecessary." 

And  see  Robertson  v.  M'Dougall,  4  Bing.  670  ;  1  M  &  P.  692  ;  3  C. 
&  P.  259. 

Hancock  v.  Case,  2  F.  &  F.  711. 

Jacob  v.  Lawrence,  4  L.  R.  Ir.  579  ;  14  Cox,  C.  C.  321. 
The  defendant  owed  the  plaintiff  £6  10s.  ;  the  plaintiff  told  his  attorney  to 
write  and  demand  the  money,  and  threaten  proceedings.  The  defendant  in 
reply  wrote  to  the  attorney  denouncing  the  proceeding  as  a  "  miserable  attempt 
at  [*232]  imposition,"  and  proceeded  to  discuss  the  plaintiff 's  "  transactions  in 
matters  generally,"  asserting  that  "his  disgusting  tricks  are  looked  upon  by 
all  respectable  men  with  scorn."    Williams,  J.,  ruled  that  the  letter  was  not 

(246) 


RETORTS.  1  75 

privileged,  and  the  Court  of  C.  P.  upheld  this  ruling.  Damages  one  farthing  ; 
the  jury  expressly  found  that  there  was  no  malice  ;  hut  the  judge  certified  for 
costs  on  the  express  ground  that  there  was. 

Huntleyv.  Ward,  1  F.  &  F.  552  ;  0  C.  15.  N.  S.  514  ;  C  Jur.  N.  S.  IS. 

The  defendant  was  clerk  of  the  peace  of  the  county  of  Kent,  and  as  such  it 
was  hi-!  duty  to  have  the  register  of  county  voters  printed,  the  expense  of  such 
printing  being  allowed  by  the  justices  in  quarter  sessions.  In  1854  the  defend- 
ant employed  a  new  printer,  who  charged  less  for  the  job  ;  the  defendant 
wrote  a  letter  to  the  Finance  Committee  of  the  justices  stating  his  reasons  for 
the  change,  and  added  that  to  continue  to  pay  the  charges  made  by  his  former 
printer,  the  plaintiff,  would  be  "  to  submit  to  what  appears  to  have  been  an 
attempt  to  extort  money  by  misrepresentation."  Held,  that  the  rest  of  the 
letter  was  privileged,  as  it  was  proper  and  necessary  for  the  defendant  to 
explain  to  the  Finance  Committee  what  he  had  done  ;  but  that  the  words 
imputing  proper  motives  to  the  plaintiff  were  uncalled  for  and  malicious. 
Damages  £50. 

Cooke  v.  Wildes,  5  E.  &  B.  328  ;  24  L.  J.  Q.  B.   3G7  ;  1  Jur.  N.  S. 
610  ;  3  C.  L.  R.  1090. 

Defendant,  having  lost  certain  hills  of  exchange,  published  a  handbill, 
offering  a  reward  for  their  recovery,  and  adding  that  he  believed  they  had 
been  embezzled  by  his  clerk.  His  clerk  at  that  time  still  attended  regularly 
at  his  office.  Held,  that  the  concluding  words  of  the  handbill  were  quite 
unnecessary  to  defendant's  object,  and  were  a  gratuitous  libel  on  the  plaintiff. 
Damages  £200. 

Finden  v.  Westlake,  Moo.  &  Malk.  461. 

(v.)  Statements  provoked  by  a  previotis  attack  by  plaintiff  on 

defendant. 

Every  man  has  a  right  to  clef  end  his  character  against  false  asper- 
sion. It  may  be  said  that  this  is  one  of  the  duties  which  he  owes  to 
himself  and  to  Iris  family.  Therefore  communications  made  in  fair 
self-defence  are  privileged.  If  lam  attacked  in  a  newspaper,  I  may 
write  to  that  paper  to  rebut  the  charges,  and  I  may  at  the  same 
time  retort  upon  my  assailant,  where  such  retort  is  a  necessary  part 
of  my  defence  or  fairly  arises  out  of  the  charges  he  has  made  against 
me.  ( 0' Donor/ line  v.  Sussey,  Ir.  R.  5  C.  L.  124.)  A  man 
who  himself  commenced  a  newspaper  Avar  cannot  subsequently 
come  to  the  Court  as  plaintiff,  to  complain  [*233]  that  he  has  had 
the  worst  of  the  fray.  But  even  in  rebutting  an  accusation,  the 
defendant  may  not  of  course  state  what  he  knows  at  the  time  to 
be  untrue,  or  intrude  unnecessarily  into  the  private  life  or  character 
of  his  assailant.  The  privilege  extends  only  to  such  retorts  as  are 
fairly  an  answer  to  the  plaintiff's  attacks.  (See  post,  p.  318.)  Such 
previous  attacks  may  also  be  a  matter  for  a  counterclaim.  (Quin 
v.  Ilession,  40  L.  T.  '70  ;  4  L.  R.  (Ir.)  35.) 

Illustrations. 

The  plaintiff,  a  barrister,  attacked  the  Bishop  of  Sodor  and  Man  before  the 
House  of  Keys  in  an  argument  against  a  private  bill,  imputing  to  the  bishop 
improper  motives  in  his  exercise  of  church  patronage.  The  bishop  wrote  a 
charge  to  his  clergy  refuting  these  insinuations,  and  sent  it  to  the  newspapers 
for  publication.  Held,  that  under  the  circumstances  the  bishop  was  justified  in 
sending  the  charge  to  the  newspapers,  for  an  attack  made  in  public  required  a 
public  answer. 

Laughton  v.  Bislwp  of  Sodor  and  Man,  L.  R.  4  P.  C.  495  ;  42  L.  J. 
(247) 


170  QUALIFIED    PEIVILEGE. 

P.  C.  11  ;    9  Moore,  P.  C.  C.  N.  S.  318  ;  21  W.  R.  204  ;    28  L.  T. 
377. 

See  ffibbs  v.  Wilkinson,  1  F.  &  F.  G08. 

Hemminga  v.  Qasson,  E.  B.  &  E.  346  ;  27  L.  J.  Q.  B.  252  ;  4  Jur. 
N.  S.  834. 
The  defendant,  was  a  candidate  for  the  county  of  "Waterf ord.  Shortly  before 
tli(!  election  the  Kilkenny  Tenant  Farmer's  Association  published  in  Freeman's 
Journal  an  address  to  the  constituency,  describing  the  defendant  as  "a  true 
type  of  a  bad  Irish  landlord— the  scourge  of  the  country,"  and  charging  him 
with  various  acts  of  tyranny  and  oppression  towards  his  tenants,  and  espect 
ally  towards  the  plaintiff,  one  of  his  former  tenants.  The  defendant  thereupon 
published  also  in  Freeman's  Journal  an  address  to  the  constituency,  answering 
the  charges  thus  brought  against  him,  and,  in  so  doing,  necessarily  libelled  the 
plaintiff.  Held,  that  such  an  address,  being  an  answer  to  an  attack,  wasprimd 
facte  privileged. 

Dwyer  v.  Esmonde,  2  L.  R.  (Ir.)  243,  reversing  the  decision  of  the 
Court  below  ;  Ir.  R.  11  C.  L.  542. 

See  also  O'Donoghue  v.  Hussey,  Ir.  R.  5  C.  L.  124. 
The  plaintiff  was  a  policy-holder  in  an  insurance  company,  and  published  a 
pamphlet  accusing  the  directors  of  that  company  of  fraud.  The  directors 
published  a  pamphlet  in  reply,  declaring  the  charges  contained  in  the  plain- 
tiff's pamphlet  to  be  false  and  calumnious,  and  also  asserting  that  in  a  suit  he 
had  instituted  he  had  sworn  in  support  of  these  charges  in  opposition  to  Ids  own 
handwriting.  Cockburn,  C.  J.,  held  the  director's  pamphlet  primd  facte 
privileged,  and  directed  the  jury  in  the  following  words:  "If  you  are  of 
opinion  that  it  was  published  bond  fide  for  the  purpose  of  the  defence  of  the 
company,  and  in  order  to  prevent  these  charges  from  operating  to  their  preju- 
dice, and  with  a  view  to  vindicate  the  character  of  the  directors,  and  not  with 
a  view  [*234]  to  injure  or  lower  the  character  of  the  plaintiff —if  you  are  of 
that  opinion,  and  think  that  the  publication  did  not  go  beyond  the  occasion, 
then  you  ought  to  find  for  the  defendants  on  the  general  issue."  Verdict  for 
the  defendants. 

Kcenig  v.  Ritchie,  3  F.  &  F.  413. 

R.  v.  Veley,  4  F.  &  F.  1117. 
The  defendant,  manager  of  a  private  lunatic  asylum,  unsuccessfully 
attempted  to  seize  and  carry  off  a  lady,  the  plaintiff,  whom  he  bond  fide  believed 
to  be  insane.  He  did  so  at  the  request  of  her  husband,  proper  certificates  hav- 
ing been  obtained  and  all  the  requirements  of  the  Lunacy  Act  complied  with. 
The  plaintiff,  who  was  perfectly  sane,  constantly  afterwards  attacked  him  in 
the  newspapers,  challenging  him  to  justify  his  conduct.  Defendant  at  last 
wrote  a  letter  in  answrer  to  these  attacks  and  sent  it  to  the  British  Medical 
Journal.    Huddleston,  B.,  held  this  letter  privileged. 

Weldon  v.  Winslow,  Times  for  March  14th— 19th,  1884. 

Coward  v.  Wellington,  7  C.  &  P.  531. 
At  a  vestry  meeting  called  to  elect  fresh  overseers,  the  plaintiff  accused  the 
defendant,  one  of  the  outgoing  overseers,  of  neglecting  the  interests  of  the 
vestry,  and  not  collecting  the  rates  ;  the  defendant  retorted  that  the  plaintiff 
had  been  bribed  by  a  railway  company.  Held  that  the  retort  was  a  mere  tu 
quoque,  in  no  way  connected  with  the  charge  made  against  him  by  the  plaintiff, 
and  was  therefore  not  privileged  ;  for  it  was  not  made  in  self-defence,  but  in 
counter-attack. 

Senior  v.  Medland,  4  Jur.   N.  S.  1039- 

And  see  Huntley  v.  Ward,  6C.B.N.  S.  514  ;  6  Jur.  N.  S.  18  ;  1 F. 
&  F.  552. 

Murphy  v.  Hatpin,  Ir.  R.  8  C.  L.  127. 

Statements  invited  by  the  plaintiff. 

Closely  akin  to  retorts  provoked  by  the  plaintiff's  own  attack,  are 
communications  procured  by  the  plaintiff's  own  contrivance  or 
request.     If  the  only  publication  that  can  be  proved  is  one  made  by 

(248) 


STATEMENTS    INVITED    I3Y    THE    PLAINTIFF.  177 

the  defendant  in  answer  to  an  application  from  the  plaintiff,  or  some 
agent  of  the  plaintiff,  demanding  explanation,  such  answer,  if  fair 
and  relevant,  Avill  be  hel<l  privileged  ;  for  the  plaintiff  brought  it 
on  himself.  But  this  rule  does  not  apply  where  then'  has  been  a 
previous  unprivileged  publication  by  the  defendant  of  the  same  libel 
or  Blander,  which  causes  the  plaintiff's  inquiry  ;  for  in  that  case  it  is 
the  defendant  who  brings  it  on  himself. 

A  plaintiff  is  not  to  be  allowed  to  entrap  people  into  making 
statements  to  him  on  which  he  can  take  proceedings.  And.  again, 
[*23o]  if  rumours  are  afloat  prejudicial  to  the  plaintiff  which  lie  is 
anxious  to  sift  and  trace  to  their  source,  all  statements  made  bond 
fide  to  him  or  any  agent  of  his  in  the  course  of  the  investigation 
are  rightly  protected.  But  it  makes  a  great  difference  if  the 
rumours  originated  with  the  defendant,  so  that  what  he  has  himself 
previously  said  produces  the  plaintiff's  inquiry.  (Per  Lord  Lynd- 
hurst  in  Smith  v.  Mathews,  1  Moo.  &  Rob.  151.)  If  in  answer  to 
such  an  inquiry  the  defendant  does  no  more  than  acknowledge  having 
uttered  the  words,  no  action  can  be  brought  for  the  acknowledg- 
ment :  the  party  injured  must  sue  for  the  words  previously,  and 
use  the  acknowledgment  as  proof  that  those  words  had  been  spoken. 
But  if  besides  saying  "Yes"  to  the  question  asked,  he  repeats  the 
words  in  the  presence  of  a  third  person,  asserting  his  belief  in  the 
accusation  and  that  he  can  prove  it ;  such  a  statement  is  slander- 
ous and  is  not  privileged,  although  elicited  by  the  plaintiff's  ques- 
tion. See  Griffiths  v.  Lewis,  7  Q.  B.  61  ;  14  L.  J.  Q.  B.  199,  in 
which  case  Lord  Denman  remarks  :  "  Injurious  words  having  been 
uttered  by  the  defendant  respecting  the  plaintiff,  the  plaintiff  was 
bound  to  make  inquiry  on  the  subject.  When  she  did  so,  instead 
of  any  satisfaction  from  the  defendant,  she  gets  only  a  repetition 
of  the  slander.  The  real  question  comes  to  this,  does  the  utterance 
of  slander  once  give  the  privilege  to  the  slanderer  to  utter  it  again 
whenever  he  is  asked  for  an  explanation  ?  It  is  the  constant  course, 
when  a  person  hears  that  he  has  been  calumniated,  to  go,  with  a 
witness,  to  the  party  who,  he  is  informed,  has  uttered  the  injurious 
words,  and  to  say,  '  Do  you  mean  in  the  presence  of  witnesses  to 
persist  in  the  charge  you  have  made  ? '  And  it  is  never  wise  to 
bring  an  action  for  slander  unless  some  such  course  has  been  taken. 
But  it  never  has  been  supposed,  that  the  persisting  in  and  repeating 
the  calumny,  in  answer  to  such  a  question,  which  is  an  aggravation 
of  the  slander,  can  be  a  privileged  communication  ;  and  in  none  of 
the  cases  cited  has  it  ever  been  so  decided."  And  see  Richards  v. 
Richards,  2  Moo.  &  Rob.  557  ;  Force  v.  Warren,  15  C.  B.  (N.  S.) 
80G.  If,  however,  the  second  occasion  on  which  the  words  were 
spoken  is  clearly  privileged  and  justifiable,  the  mere  fact  that 
defendant  had  previously  spoken'them  will  not  of  itself  destroy  the 
privilege  ;  the  plaintiff  must  rely  on  the  first  utterance  :  that  may 
be  privileged  as  well  or  may  be  barred  by  the  statute.  This  rule  is 
sometimes  cited  as  an  instance  of  the  maxim  "  Volenti  non  fit 
injuria.,'1''  and  is  then  not  classed  as  a  ground  of  privilege,  but 
would  rather  be  stated  thus  :— That  if  the  only  publication  proved 
at  the  trial  be  one  brought  about  by  the  plaintiff's  own  contrivance, 

12   LIB.  A  SLAN.  (249) 


1  <  8  QUALIFIED    PRIVILEGE. 

this  is  no  sufficient  evidence  of  publication  ;  it  is  as  though  the 
only  publication  were  to  [*236]  the  plaintiff  himself,  and  therefore 
he  must  be  nonsuited.  Such  was  the  ruling  of  Lord  Ellenborough 
in  Smith  v.  Wood,  3  Camp.  323  ;  but  this  is  inconsistent  with  Duke 
of  Brunswick  v.  Harmer,  14  Q.  B.  185  ;  and  in  Warr  v.  Jolly,  6 
Car.  &  P.  497,  it  was  expressly  held  that  a  communication  pur- 
posely procured  by  the  plaintiff  was  privileged. 

Illustrations. 

"  If  a  servant,  knowing  the  character  which  his  master  will  give  of  him,  pro- 
cures a  letter  to  be  written,  not  with  a  fair  view  of  inquiring  the  character,  but 
to  procure  an  answer  upon  which  to  ground  an  action  for  a  libel,  no  action 
can  be  maintained. "     Per  Lord  Alvanley  in 
King  v.  Wo/ring  et  u.r.,  5  Esp.  15. 

And  see  Fonrille  v.  Nease,  Dudley,  S.  C.  303,  ante  p.  152. 
The  defendant  discharged  the  plaintiff,  his  servant,  and  when  applied  to  by 
another  gentleman,  gave  him  a  bad  character.  The  plaintiff's  brother-in-law, 
( 'oilier,  thereupon  repeatedly  called  on  the  defendant  to  inquire  why  he  had 
dismissed  the  plaintiff  ;  and  at  last  the  defendant  wrote  to  Collier  stating  his 
reasons  specifically.  The  plaintiff  sued  out  a  writ  the  same  day  the  letter 
was  written.  Held  by  Lord  Mansfield,  B.  J.,  and  Butler,  J.,  that  no  action  lay 
on  such  letter,  as  the  defendant  was  evidently  entrapped  into  writing  it. 
Weatherston  v.  Hawkins,  1  T.  R.  110. 

See  also  Taylor  v.  Hawkins,  16  Q.  B.  308  ;  20  L.  J.  Q.  B.  313  ; 
H.  v.  Hait,  1  Wm.  Black,  386  ;  and  the  remarks  of  Lord  Alvanley, 
C.  J.  in 
,    Rogers  v.  Clifton,  3  B.  &  P.  592. 
A  builder  employed  two  men,  the  plaintiff  and  Fosdyke,  to  repair  Barton's 
house.     Defendant  on  a  privileged  occasion  had  stated  to  the  builder,  "  I  saw 
the  man  employed  by  jrou  take  from  Mr.  Barton's  house  and  carry  away  two 
long  pieces   of  quartering.     I    hallooed    to    the    man."     Plaintiff  thereupon 
brought  Fosdyke  to  the  defendant  and  said,  "  Is  this  the  man  ?  Defendant 
replied,  "  No,  you  are  the  man."     Held,  no  action  lav. 
Kine  v.  Sewell,  3  M.  &  W.  297. 

Amann  v.  Bamrn,  8  C.  B.  N.  S.  597  ;  29  L.  J.  C.  P.  313  ;  7  Jur. 
N.  S.  47  ;  8  W.  R.  470. 
The  defendant  was  asked  by  a  friend  of  the  plaintiff's  to  sign  a  memorial  in 
favour  of  the  plaintiff.     He  declined.     The  plaintiff's  friend  pressed  him  to 
sign  and  asked  his  reasons  for  declining.     Thereupon  defendant  stated  his  rea- 
sons, and  this  statement  was  held  a  privileged  communication. 

Cowles  v.  Potts,  34  L.  J.  Q.  B.  247  ;  11  Jur.  N.  S.  946  ;  13  W.  R. 

858. 
Murdoch  v.  FunduUian,  2  Times  L.  R.  215,  614. 
A  friend  of  the  plaintiff's  asked  defendant  to  act  as  arbitrator  between  the 
plaintiff  and  A.  in  a  dispute  about  a  horse.  Defendant  declined.  The  friend 
wrote  again  strongly  urging  defendant  to  use  his  influence  with  A.  not  to  bring 
the  case  into  court.  Defendant  again  declined,  and  stated  his  reasons  ;  and  on 
this  letter  plaintiff  brought  an  action.  Subsequently  another  friend  of  the 
plaintiff's,  with  his  knowledge  and  consent,  wrote  to  defendant  that  she  was 
[*237]  confident  he  was  misinformed  about  the  plaintiff .  Defendant  replied 
that  he  believed  A.  and  his  servant,  and  not  the  plaintiff.  On  this  plaintiff 
brought  a  second  action  of  libel.     Held,  that  both  letters  were  privileged. 

Whiteley  v.  Adams,  15  C.  B.  N.  S.  392  ;  32  L.  J.  C.  P.  89;  10  Jur. 
N.  B.  470  ;  12  W.  R.  153  ;  9  L.  T.  483. 
A  witness  (whom  we  must  presume  to  have  been  an  •  agent  of  the  plaintiff's, 
though  it  is  not  so  stated  in  the  report)  heard  that  the  defendant  had  a  copy  of 
a  libellous  print,  went  to  defendant's  house,  and  asked  to  see  it  ;  the  defendant 
thereupon  produced  it,  and  pointed  out.  the  figure  of  the  plaintiff  and  the  other 
persons  caricatured.  Lord  Ellenborough  nonsuited  the  plaintiff,  as  there  was 
no  other  publication  proved. 

Smith  v.  Wood,  3  Camp.  323. 
(250) 


co:.:mo\~  interest.  179 

The  plaintiff  had  been  in  partnership  withhis  brother-in-law,  Pinhorn,  as  a 
linendraper  al  Southampton;  but  gave  up  business  and  became  a  dissenting 
minister.  Rumours  reached  bis  congregation  thai  he  had  cheated  his  brother- 
in-law  in  tlic  settlement  of  the  accounts  on  his  retiremenl  from  the  partnership. 
The  plaintiff  challenged  inquiry,  and  invited  the  malcontents  in  the  congre 
gation  to  appoint  sonic  one  to  thoroughly  sift  the  matter.  The  malcontents 
appointed  the  defendant,  and  the  plaintiff  appointed  the  Rev.  Robert  Ainslie. 
Held,  that  all  communications  between  the  defendant  and  Ainslie  relative  to 
the  matter  were  privileged,  as  being  made  with  the  sanction  and  concurrence 
of  the  plaintiff. 

Hopwood  v.  Thorn,  8  C.  B.  293  ;  19  L.  J.  C.  P.  94  ;  14  Jur.  87. 

And  see  Sayer  v.  Begg,  15  Ir.  C.  L.  R.  458. 

/.'■  mington  v.  Oongdon  and  otlu  rs,  2  Tick.  (19  Mass.)  310. 

Kirkpatrick  v.  Eagle  Lodge,  2(5  Kansas,  384 ;  40  Amcr.  R.  316. 
In  answer  to  plaintiff's  inquhy  as  to  a  rumour  against  himself,  defendant 
told  him,  in  the  presence  of  a  third  party,  what  some  one  had  said  to  his 
(defendant's)  wife.  There  was  no  proof  that  the  defendant  had  ever  uttered 
a  word  en  the  subject  till  he  was  applied  to  by  the  plaintiff.  Held,  that  the 
answer  was  privileged. 

Warr  v.  Jolly,  6  Car.  &  P.  497  ;  as  explained  by  Lord  Denman  in 

Griffiths  v.  Levris,  7  Q.  B.  67  ;  14  L.  J.  Q.  B.  199  ;  9  Jur.  370. 

And  sec  Ricliards  v.  Richards,  2  Moo.  &  Rob.  557. 
The  plaintiff  called  at  the  "  Trevor  Arms,"  and  asked  the  landlord,    in   the 
presence  of  witnesses,   "What    do    you  mean   by  saying  that   1   have  taken 
sovereigns  over  your  counter  from  your  barmaid  ?  "     Day,  J.,  held  defendant's 
answer  privileged. 

Palmer  v.  Hummerston  (1883),  1  Cababe  &  Ellis,  36. 
The  plaintiff  was  a  builder,  and  contracted  to  build  certain  school-rooms  at 
Bermondsey.  The  defendant  started  a  false  report,  that  in  the  building  the 
plaintiff  had  used  inferior  timber  ;  the  report  reached  the  plaintiff,  who  there- 
upon suspended  the  work,  and  demanded  an  inquiry  ;  and  the  committee  of 
the  school  employed  defendant  to  survey  the  work  and  report.  He  reported 
falsely  that  inferior  timber  was  used.  Lord  Lyndhurst  directed  the  jury,  that 
if  they  believed  that  the  reports  which  produced  the  inquiry  originated  with 
the  defendant,  the  defendant's  report  to  the  committee  was  not  privileged. 
Verdict  for  the  plaintiff. 

Smith  v.  Mathews,  2  Moo.  &  Rob.  151 . 
[*  238]  The  Weekly  Dispatch  libelled  the  Duke  of  Brunswick  in  1830.  In 
1848  the  Duke  sent  to  the  office  of  that  newspaper  for  a  copy  of  the  number 
containing  the  old  libel,  and  obtained  one.  Held,  that  he  could  sue  on  this 
publication  to  his  own  agent,  though  all  proceedings  on  the  former  publication 
were  barred  by  the  Statute  of  Limitations. 

Duke   of   Brunswick  v.  Harmer,  14  Q.  B.  185  ;  19  L.  J.  Q.  B.  20  ; 
14  Jur.  110  ;  3  C.  &  K.  10. 


II.  Where  the  defendant  has  an  interest  in  the  subject- 
matter  OF  THE  COMMUNICATION,  AND  THE  PERSON  TO  "WHOM 
THE  COMMUNICATION  IS  MADE  HAS  A  CORRESPONDING  INTEREST. 

In  such  a  case  every  communication  honestly  made  in  order 
to  protect  such  common  interest  is  privileged  by  reason  of  the 
occasion. 

Such  common  interest  is  generally  a  pecuniary  one  ;  as  that  of 
two  customers  of  the  same  bank,  two-  directors  of  the  same  company, 
two  creditors  of  the  same  debtor.  But  it  may  also  be  professional, 
as  in  the   case  of  two  officers  in  the  same  corps,  or  masters  in  the 

(251) 


180  QUALIFIED    PRIVILEGE. 

same  school,  anxious  to  preserve  the  dignity  and  reputation 
of  the  body  to  which  they  both  belong.  In  short,  it  may  be 
any  interest  arising  from  the  joint  exercise  of  any  legal  right  or 
privilege,  or  from  the  joint  performance  of  any  duty  imposed  or 
recognised  by  the  law.  Thus  two  executors  of  the  same  will, 
two  trustees  of  the  same  settlement,  have  a  common  interest, 
though  not  a  pecuniary  one,  in  the  management  of  the 
trust  estate.  So  the  ratepayers  of  a  parish  have  a  common 
interest  in  the  selection  of  fit  and  proper  officers  [*  239] 
to  serve  in  the  parish,  their  salary  being  paid  out  of  the  rates. 
So  relations  by  blood  or  marriage  have  a  common  interest  in 
their  family  concerns.  Hut  beyond  this  there  is  no  privilege. 
The  "common  interest  "  must  be  one  which  the  law  recognises  and 
appreciates.  No  privilege  attaches  to  gossip,  however  interesting 
it  may  be  to  both  speaker  and  hearers.  (Rumsey  v.  Webb  et  ux. 
Car.  &  M.  104;  11  L.  J.  C.  P.  129.)  The  law  never  sanctions 
mere  vulgar  curiosity  or  officious  intermeddling  in  the  concerns  of 
others.  To  be  within  the  privilege,  the  statement  must  be  such  as 
the  occasion  warrants  and  must  be  made  bona  fide  to  protect  the 
private  interests  both  of  the  speaker  and  of  the  person  addressed. 
If  in  fact  the  defendant  had  no  other  interest  in  the  matter  beyond 
that  which  any  other  educated  person  would  naturally  feel,  inter- 
ference on  his  part  would  be  officious  and  unprivileged.  (Botterill 
and  another  v.  Whitehead,  41  L.  T.  588.) 

Illustrations. 

The  defendant  and  Messrs.  Wright  and  Co.,  his  bankers,  were  both  interested 
in  a  concern,  the  management  of  which  the  bankers  had  entrusted  to  the  plain- 
tiff, their  solicitor.  A  "confidential  letter  written  by  the  defendant  to  Messrs. 
Wright  and  Co.,  charging  the  plaintiff  with  professional  misconduct  in  the 
management  of  such  concern  was  held  privileged  by  Lord  Ellenborough. 
M'Dougall  v.  Claridge,  1  Camp.  267. 
A  creditor  of  the  plaintiff  may  comment  on  the  plaintiff's  mode  of  conducting 
his  business  to  the  man  who  is  surety  to  that  creditor  for  the  plaintiff's  trade 
debts. 

I) unman  v.  Bigg,  1  Camp.  269,  n. 
Where  A.  and  B.  have  a  joint  interest  in  a  matter,  a  letter,  written  by  A.  to 
induce  B.  to  become  a  party  to  a  suit  relating  thereto,   is  privileged  though  it 
may  refer  to  the  plaintiff  in  angry  terms. 

Shipley  v.  Todhuntt  r,  7  C.  &  P.  680. 

Klinck  v.  Colby  and  others,  1  Sickles  (48  N.  Y.)  427,  ante,  p.  224. 
A  creditor  was  appointed  trustee  in  liquidation  of  the  debtor's  estate,  the 
debtor  continuing  to  manage  his  former  business  for  the  benefit  of  the  estate. 
A  letter  written  by  the  trustee  to  another  creditor,  commenting  in  very  severe 
terms  on  the  debtor's  conduct,  is  privileged. 

Spill  v.  Maule,  L.  R.  4  Ex.  232  ;  38  L.  J.  Ex.  138  ;  17  W.  R.  S05 ; 
20  L.  T.  67."). 
A  person  interested  in  the  proceeds  of  a  sale  may  give  notice  to  the  auction- 
eer [*  240]  not  to  part  with  them  to  the  plaintiff,  who  ordered  the  sale,  on  the 
ground  that  he  has  committed  an  act  of  bankruptcy. 

Blackham  v.  Pugh,  2  C.  B.  611 ;  15  L.  J.  C.  P.  290. 
So  the  son-in-law  of  a  lady  has  sufficient  interest  in  whom  she  marries  to 
justify  him  in  warning  her  not  to  marry  the  plaintiff,  if  he  honestly  believes 
him,  however  erroneously,  to  be  of  bad  character. 

Todd  v.  Hawkins,  8  C.  &  P.  88  ;  2  M.  &  Rob.  20. 
Adams  v.  Coleridge,  1  Times  L.  R.  84. 
(252) 


COMMON"    INTEREST.  181 

So,  too,  a  bishop's  charge  to  his  clergy  is  prima  facie  privileged,  although  it 
contain  calumniatory  matter. 

Lau(/lit'in,\.  Bishop qf  Sodor  and  Man,  L.  R.  4  P.  C.  495  ;  42  L.  J. 
P.  C.  11  ;  21  W.  It.  204;  28  L.  T.  377  ;  9  Moore,  P.  C.  C.  N.  S. 
318. 
So  the  reports  of  the  directors  and  auditors  of  a  company  printed  and  circu- 
lated among  the  shareholders  are  privileged. 

Lawless  v.  Anglo-Egyptian  Cotton  Co.,  L.  It.  4  Q.  B.  262  ;  10  B.  A-  S. 
226  ;  38  L.  J.  II  15.  129  ;  17  W.  It.  498.. 
A  solicitor,  acting  for  some  shareholders  in  a  company,  printed  and  sent  to 
the  shareholders,  but  to  no  one  else,  a  circular  reflecting  on  the  promoters  and 
directors  and  inviting  the  shareholders  to  meet  and  discuss  their  position  and 
take  measures  to  protect  their  common  interests.  Held,  that  such  publication 
was  prima   facie  privileged. 

Quartz  Hill  Gold  Mining  Co.  v.  Beall{Q.  A.),  20  Ch.  I).  509  ;  51  L. 
J.  Ch.  874  ;  30  W.  R.  583  ;  46  L.  T.  746. 
A  caution  sent  by  the  committee  of  a  charity  to  all  the  subscribers,  warning 
them  not  to  pay  their  subscriptions  in  future  to  the  plaintiff,  the  former  col- 
lector,  who   "was  found  unworthy  of  confidence,  and  dismissed,"  is  prima, 
facie  privileged. 

Gassett  v.  Gilbert  and  others,  6  Gray,  (72  Mass.)  94. 
A  communication  from  a  firm  of  brewers  to  the  tenants  of  their  public- 
houses,  refusing  to  accept  any  longer  in  payment  cheques  drawn  on  a  particu- 
lar bank,  is  prima  facie  privileged. 

Capital  ami  Counties  Bank  v.  Hcnty  and  So/is  (C.  A.),  5  C.  P.  D. 
514  ;  49  L.  J.  C.  P.  830  ;  28  W.  It.  851  ;  43  L.  T.  651  ;  (II.  L.), 
7  App.  Cas.  741-,  52  L.  J.  Q.  B.  232;  31  W.  R.  157;  47  L.  T. 
662  ;  47  J.  P.  214. 
Defendant  was  a  life  governor  of  a  public  school  to  which  the  plaintiff  sup- 
plied butchers'  meat ;  defendant  told  the  steward  of  the  school,  whose  duty  it 
was  to  examine  the  meat,  that  plaintiff  had  been  known  to  sell  bad  meat.    Held 
a  privileged  communication. 

Humphreys  v.  Stillwell,  2  F  &  F.  590. 
And  see  Crisp  v.  Gill,  29  L.  T.  (O.  S.)  82. 
Several  fictitious  orders  for  goods  had  been  sent  in  the  defendant's  name  to  a 
tradesman,  who  thereupon  delivered  the  goods  to  the  defendant.  The  defend- 
ant returned  the  goods,  and,  being  shown  the  letters  ordering  them,  wrote  to 
the  tradesman  that  in  his  opinion  the  letters  were  in  the  plaintiff's  handwriting. 
Held,  that  this  expression  of  opinion  was  privileged,  as  both  defendant  and  the 
tradesman  were  interested  in  discovering  the  culprit. 

Croft  v.  Stevens,  7H.&N.  570  ;  31  L.  J.  Ex.  143 ;  10  W.  R.  272  ; 
5  L.  T.  683. 
[*241]  A  prominent  member  of  the  church  of  St.  Barnabas,  Pimlico,  went 
to  stay  in  the  vacation  at  Stockcross,  in  Berkshire,  and  so  conducted  himself 
there  as  to  gravely  offend  the  parishioners.  Letters  passing  between  the  curate 
of  St.  Barnabas  and  the  incumbent  of  Stockcross  relative  to  the  charges  of 
misconduct  brought  against  the  plaintiff  were  held  privileged,  as  both  were 
interested  in  getting  at  the  truth  of  the  matter. 

W/iiteley  v.  Adams,  15  C.  B.  N.  S.  392  ;    33  L.  J.  C.  P.  89  ;    10  Jur. 
N.  S.  470  ;  12  W.  R.  153  ;  9  L.  T.  483. 
The  defendant  had  a  dispute  with  the  Newry  Mineral  Water  Company, 
which  they  agreed  to  refer  to  "  some  respectable  printer  who  should  be  indif- 
ferent between  the  parties,"  as  arbitrator.      The  manager  of   the  company 
nominated   the   plaintiff,    a   printer's   commercial   traveller.      The   defendant 
declined  to  accept  him  as  an  arbitrator,  and,  when  pressed  for  his  reason,  wrote 
a  letter  to  the  manager  stating  that  the  plaintiff    had  formerly  been  in  the 
defendant's   employment,   and   had   been   dismissed   for   drunkenness.       The 
plaintiff    thereupon   brought    an   action   on   the  letter  as  a   libel   concerning 
him  in  the  way  of  his  trade.      Held,  that   the  letter  was  privileged,  as  both 
parties  were  interested  in  the  selection  of  a  proper  arbitrator. 
Hobbs  v.  Bryers,  2  L.  R.  Ir.  496. 
If  a  parish  officer  seeks  re-election,  charges  made  against  him  at  the  parish 

(253) 


182  QUALIFIED    PRIVILEGE. 

meeting  for  the  nomination  of  officers  as  to  his  previous  conduct  in  the  office 
are  privileged,  if  made  bond  fide. 

George  v.  Goddard,  2  F.  &  F.  689. 
Kershaw  v.  Bailey,  1  Ex.  74a  ;  17  L.  J.  Ex.  129. 
See  Senior  v.  Medlaad,  4  Jur.  N.  S.  1039. 
Fierce  v.  Ellis,  6  Ir.  C.  L.  R.  55. 
Bennett  v.  Barry,  8  L.  T.  857. 
Harle  v.  Catherall.'U  L.  T.  801. 
Even  though  made  to  the  wife  of  a  voter,  not  to  the  voter  himself. 

Wisdom  v.  Brown,  1  Times  L.  R.  412. 
So  where  the  officers  of  any  town  claim  to  be  reimbursed  moneys  expended 
by  them,  any  statements  made  at  a  town  meeting  by  a  ratepayer  are  privileged, 
if  made  with  the  bond  fide  intention  of  showing  that  the  expenses  were  not 
properly  incurred  by  them  in  their  official  capacity,  and  so  ought  not  to  be 
charged  on  the  rates. 

Smith  v.  Biggins,  16  Gray  (82  Mass.),  251. 
A  parish  meeting  was  called  to  investigate  the  accounts  of   the  parish  con- 
stable ;  one  ratepayer  was  unable  to  attend,  so  he  wrote  a  letter  to  be  read  to 
the  meeting  concerning  the  constable  and  his  accounts.      This  letter  was  held 
prima  facie  privileged.     For  had  he  attended  the  meeting  and  made  the  same 
charge  orally,  such  speech  would  have  been  privileged. 
Spencer  v.  Amerton,  1  Moo.  &  Rob.  470. 
But  a  personal  attack  on  the  private  character  of   a  candidate  at  a  parlia- 
mentary election  is  not  privileged  {ante,  p.  43). 

Buncombe  v.  Baniell,  8  C.  &  P.  222  ;  2  Jur.  32  ;  1  W.  W.  &  H.101. 
Sir  Thomas  Glarges  v.  Roice,  3  Lev.  30. 

How  v.  Prin,  Holt,  652  ;    7  Mod.  107  ;    2  Salk.  694 ;   2  Ld.  Raym. 
812  ;  1  Brown's  Parly.  Cas.  64. 
■    Onslow  v.  Home,  3  Wils.  177  ;  2  W.  Bl.  750. 
Harwood  v.  Sir  J.  Astley,  1  B.  &  P.  N.  R.  47. 
Pankhurst  v.  Hamilton,  3  Times  L.  R.  500. 
[*242]  A  member  of  Parliament  gave  notice  that  he  would  ask  in  the  House 
of  Commons  why  the   plaintiff,  a  colonel  in  the   army,  had   been  dismissed  ; 
thereupon  the  defendant,  the  plaintiff's  superior  officer,  who  had  been  instru- 
mental in  procuring  his  discharge,  called  on  the  member,  whom  he  knew  well, 
to  explain  the  true  facts  of  the  case.     Lord  Campbell  considered  the  occasion 
primd  facie  privileged  ;    but  the  jury  found  it  was  done  maliciously,  and 
awarded  the  plaintiff  £200  damages. 

Dickson  v.  Earl  of  Wilton,  1  F.  &  F.  419. 
A  bond  fide  communication  between  a  member  of  Parliament  and  his  constit- 
uents on  a  matter  of  political  or  local  interest  is  privileged  ;  such  as  a  report 
of  any   speech   of  his   circulated   privately  among  his  constituents  for  their 
information.     Per  Lord  Campbell,  C.  J.,  and  Crompton,  J.,  in 

Davison  v.  Duncan,  7  E.  &  B.  233  ;  26  L.  J.  Q.  B.  107. 
And  Cockburn,  C.  J.,  in 

Wason  v.  Walter,  L.  R.  4  Q.  B.  95  ;  8  B.  &  S.  730  ;    38  L.  J.  Q.  B. 
42;  17  W.  R.  109;  19  L.  T.  416. 
But  it  would  be  otherwise  if  a  member  of  Parliament  published  his  speech 
to  all  the  world,  with  the  malicious  intention  of  injuring  the  plaintiff. 
R.  v.  Lord  Abingdon,  1  Esp.  226. 
R.  v.  Creevey,  1  M.  &  S.  273. 
But  a  judge  of  the  Bankruptcy  Court  and  an  opposing  creditor  have  no  such 
common  interest  in  the  case  of  an  insolvent  debtor  as  to  render  privileged  a 
letter  written  by  the  creditor  to  the    judge  previously   to  the  hearing  of  the 
case.     Writing  such  a  letter  is  indeed  a  contempt  of  Court. 
Gould  v.  Hulme,  3  C.  &  P.  625. 
So  the  agents  of  the  rival  candidates  at  an  election  have  no  common  interests, 
at  all  events  after  the  election  is  over. 

Dickeson  v.  Billiard  and  another,  L.  R.  9  Ex.  79  ;    43  L.  J.  Ex.  37  ; 
22  W.  R.  372 ;  30  L.  T.  196. 
A  confidential  consultation  between  a  vicar  and   his  curate  as  to  the  course 
which  the  vicar  ought  to  adopt  in  an  ecclesiastical  matter  was  held  privileged  in 

(254) 


COMMON    INTEREST.  183 

Clark  v.  Molyneux,  3  Q.  B.  D.  237 ;  47  L.  J.  Q.  B.  230 ;    26  W.  R. 
104  ;  36  L.  T.  466  ;  37  L.  T.  694  ;  14  (  ox,  C.  C.  10. 

And  see  Bell  v.  Parke,  10  Ir.  ('.  L.  R.  284  ;  ante,  p.  207. 
But  where  a  Sector  sent  to  his  parishioners  a  circular-letter,  warning  them  nol 
to  send  their  children   to  a  school  which   plaintiff  bad  opened   in  the  parish 
against  the  rector's  wishes,  and  in  opposition  to  the  rector's  parish  school,  ii  was 
held  that  no  privilege  attached. 

Gilpin  v.  Fowler,  9  Ex.  615  ;  23  L.  J.  Ex.  152 ;  18  Jur.  293. 
If  a  clergyman  or  parish  priest,  in  the  course  of  a  sermon,  "make  an 
example  "  of  a  member  of  his  Hock,  by  commenting  on  his  misconduct,  and 
either  naming  him  or  alluding  to  him  in  unmistakable  terms,  his  words  will  not 
be  privileged,  although  they  were  uttered  bond  fide  in  the  honest  desire  to  reform 
the  culprit,  and  to  warn  the  rest  of  his  hearers,  and  although  the  congregation 
would  probably  be  more  interested  in  this  part  of  the  discourse  than  in  any 
other.     If  the  words  be  actionable,  the  clergyman  must  justify. 

Mag  rath  v.  Finn,  Ir.  R  11  C.  K  152. 

Kinnahan  v.  McOullagh,  ib.  1. 

Ii.  v.  Knight  (1736),  Bacon's  Abr.  A.  2  (Libel). 

[*243]  And  see  Greenwood  v.  Prick,  Cro.  Jac.   91,  as  overruled  by 
Lord  Denman,  12,  A.  &  E.  726  ;  ante,  p.  5. 
But  words  spoken  at  a  church  meeting  in  the  regular  course  of  church  dis- 
cipline, with  the  honest  intention  of  examining  whether  the  plaintiff  is  or  is  not 
fit  to  be  a  member  of  the  church,  are  held  privileged  in  America. 

Jarvzs  v.  Hathaway,  3  Johns.  (N.  Y.  Sup.  Court),  178. 

Iiemington  v.  Gongdon  andothers,  2  Pick.  (19  Mass.),  310. 

York  v.  Pease,  2  Gray  (68  Mass.),  282. 

Kirkpatrick  v.  Eagle  Lodge,  26  Kansas,  384  ;  40  Amer.  R.  316. 
Unless  such  words  are  also  defamatory  of  some  third  person  who  is  not  a 
member  of  the  church,  when  such  outsider  may  sue. 

Coombs  v.  Rose,  8  Blackford  (Indiana),  155. 

See  in  England,  R.  v.  Hart,  1  Wm.  Bl.  386. 
So  where  the  plaintiff  was  a  member  of  a  provincial  assembly  of  congre- 
gational ministers,  a  resolution  proposed  at  a  meeting  of  that  assembly  severely 
censuring  the  plaintiff,  and  all  speeches  made  thereon,  are  privileged  ;  but  a 
letter  written  to  the  assembly  by  a  person  not  a  member  of  it  is  not  privileged. 

Shurtleffv.  Stevens,  51  Vermont,  501  ;  31  Amer.  R.  69d. 

Shurtleffv.  Parker,  130  Mass.  293  ;  39  Amer.  R.  454. 

But  where  a  large  number  of  persons  have  an  interest  more  or 
less  remote  in  the  matter,  defendant  will  not  be  privileged  in  inform- 
ing them  all  by  circular  or  otherwise,  unless  there  is  no  other  way  of 
effecting  his  object.  Thus  in  the  case  of  most  societies  there  is  a 
council,  or  a  managing  committee,  or  a  manager,  or  a  body  of  trus- 
tees or  directors;  and  communications  made  confidentially  to  them 
will  be  privileged  which  would  not  be  privileged,  if  addressed  in  the 
first  instance  to  the  whole  body  of  subscribers  or  shareholders. 
"  Such  a  communication  as  the  present  (a  charge  against  the  medical 
officer  of  a  poor  law  union)  ought  to  be  confined  in  the  first  instance 
to  those  whose  duty  it  is  to  investigate  the  charges."  (Per  Mellish, 
L.  J.,  in  Purcell  v.  Howler,  2  C.  P.  D.  at  p.  22 L) 

A  communication  can  scarcely  be  called  confidential  which  is 
addressed  to  some  two  or  three  hundred  people  at  once.  Thus  the 
mere  fact  that  I  subscribe  to  a  charity  does  not  entitle  mfe  to  can- 
vass the  private  character,  and  discuss  the  private  concerns,  of  the 
medical  man  [*244]  employed  by  the  charity,  and  so  cause  bis 
past  life  to  become  a  topic  of  general  conversation  in  the  town  ; 
although   any    representation    made   to  the   managing    committee 

(255) 


184  QUALIFIED    PRIVILEGE. 

would  be  privileged  ;  and  if  absolutely  necessary  in  my  opinion  to 
the  proper  working  of  the  charity,  I  might,  after  due  notice  given 
to  the  medical  man,  appeal  from  the  decision  of  the  committee  to 
the  general  body  of  subscribers.  {Martin  v.  Strong,  5  A.  &  E. 
535,  as  explained  in  Kine  v.  Sewell,  3  M.  &  W.  297.)  But  if  the 
charge  I  bring  is  one  against  the  committee  or  the  directors,  or  the 
majority  of  them,  as  such,  I  am  entitled  to  address  myself  to  the 
whole  body  of  subscribers  or  shareholders  at  once.  ( Quartz  Hill 
Gold  Mining  Co.  v.  Jieall  (C.  A.),  20  Ch.  D.  501  ;  51  L.  J.  Ch.  874  ; 
30  W.  R.  583  ;  46  L.  T.  74G.) 

Illustrations. 

A  letter  written  by  a  subscriber  to  a  charity  to  the  committee  of  management 
of  the  charity  concerning  the  conduct  of  their  secretary  in  the  management  of 
the  funds  of  the  charity  is  prima  facie  privileged. 
Maitland  v.  Bramwell,  2  F.  &  F.  623. 
See  also  Hartwell  v.  Vesey,  3  L.  T.  275. 
Any  statement  made  by  a  director  of  a  company  to  his  fellow  directors,  as  to 
the  conduct  and  character  of  their  auditor,   is  privileged,  though  it  relates  to 
his  conduct  with  reference  to  another  company,  of  which  he  was  secretary  and 
not  auditor. 

Harris  v.  Thompson,  13  C.  B.  333. 
But  a  statement   made  by  one  private  shareholder  in  a  company  to  another 
about  a  man  who  was  formerly  engineer  to  the  company  and  sadly  mismanaged 
its  affairs,  is  not  privileged. 

•  Brooks  v.  Blanshard,  1  Cr.  &  Mees.  779  ;  3  Tyrw.  844. 
Defendant,  who  was  a  sergeant  in  a  volunteer  corps,  of  which  plaintiff  also 
was  a  member,  represented  to  the  committee  by  whom  the  general  business  of 
the  corps  was  conducted,  that  plaintiff  was  an  unlit  person  to  be  permitted  to 
continue  a  member  of  the  corps  ;  that  he  was  the  executioner  of  the  French 
king,  &c.  Lord  Ellenborough  held  the  communication  privileged. 
Barbaud  v.  Hookham,  5  Esp.  109. 

See  Bell  v.  Parke,  10  Ir.  C.  L.  R.  284  ;  11  Ir.  C.  L.  R.  413. 
But  for  one  member  of  a  charitable  institution  to  send  round  to  all  the  sub- 
scribers a  circular  calling  on  them  "to  reject  the  unworthy  claims  of  Miss 
Hoare,"  and  stating  that  "  she  squandered  away  the  money  which  she  did 
obtain  from  the  benevolent  in  printing  circulars  abusive  of  Commander  Dick- 
son," the  secretary  of  the  institution,  is  libellous,  and  not  privileged. 

Hoare  v.  Silverlock  (No.  1  ;  1848),  12  Q.  B.  624  ;  17  L.  J.  Q.  B.  306  ; 
12  Jur.  695. 
"  There  may  be  a  thousand  subscribers  to  a  charity,"  observes  Lord  Denman 
in  Martin  v.  Strong,  5  Ad.  &  E.  538.     "  Such  a  claim  of  privilege  is  too  large." 

[*245]  And  d  fortiori,  if  the  words  be  spoken  in  the  presence  of 
strangers  wholly  uninterested  in  the  matter,  the  communication 
loses  all  privilege.  The  defendant  in  all  these  cases  must  be  care- 
ful that  his  words  reach  only  those  who  are  concerned  to  hear  them. 
Words  of  admonition  or  of  confidential  advice  should  be  given  pri- 
vately ;  not  shouted  across  the  street,  or  written  on  postcards,  or 
published  in  the  newspapers.  (  Wilson  v.  Collins,  5  C.  &  P.  373  ; 
Robinson  v.  Jones,  4  L.  R.  Ir.  391.)  It  is  true  that  the  accidental 
presence  of  some  third  person  will  not  alone  take  the  case  out  of  the 
privilege,  if  it  was  unavoidable  or  happened  in  the  usual  course  of 
business  affairs.  But  if  the  defendant  purposely  contrives  that  a 
stranger  should  be  present,  who  has  no  right  to  be  present,  and  who 
in  the  natural  course  of  things  would  not  be  present,  all  privilege 

(256; 


EXTENT    OF    COMMUNICATION.  185 

is  lost,  (Kershaw  v.  Bailey,  1  Ex.  743  ;  ]  7  L.  J.  Ex.  129;  Scarll  v. 
Dixon,  4  F.  &  F.  250.)  And  whenever  a  defendant  deliberately 
adopts  a  method  of  communication  which  gives  unnecessary  publicity 
to  statements  defamatory  of  the  plaintiff,   the  jury  will  be  apt  to 

suspect  malice. 

So,  too,  in  making  a  communication  which  is  only  privileged  by 
reason  of  its  being  made  to  a  person  interested  in  the  subject-matter 
thereof,  the  defendant  must  be  careful  not  to  branch  out  into  ext  rauc- 
ous matter  with  which  such  person  is  unconcerned.  The  privilege 
only  extends  to  that  portion  of  the  communication  in  respect  of  which 
the  parties  have  a  common  interest  or  duly. 

The  defendant  must  also  be  careful  to  avoid  the  use  of  exaggerated 
expressions  ;  for  the  privilege  may  be  lost  by  the  use  of  violent 
language  when  it  is  clearly  uncalled  for.  (Fryer  v.  Ifinnersley,  \5 
C.  B.  N.  S.  422  ;  33  L.  J.  C.  P.  96  ;  10  Jur.  N.  S.  442  ;  12  W.  R. 
155  ;  9  L.  T.  415  ;  Senior  v.  Medland,  4  II.  &  N.  843  ;  4  Jur.  N.  S. 
1039.)  And  especially  in  cases  where  a  rumor  reaches  the  defend- 
ant, of  which  he  feels  it  his  duty  to  inform  the  others  who  are  equally 
interested  with  himself  in  its  subject-matter,  he  should  be  very 
careful  to  report  it  precisely  as  he  heard  it,  without  [*24G]  any  addi- 
tion or  exaggeration.  Bromage  v.  Prosser,  4  B.  &  C.  247  ;  6  Dowl. 
&  R.  290.; 

Illustrations. 

The  plaintiff  and  defendant  were  jointly  interested  in  property  in  Scotland,  to 
the  manager  of  which  the  defendant  wrote  a  letter  principally  about  the  prop- 
erty and  the  conduct  of  the  plaintiff  with  reference  thereto,  but  also  contain- 
ing a  charge  against  the  plaintiff  with  reference  to  his  conduct  to  his  mother 
and  aunt.  Held,  that  though  the  part  of  the  letter  about  the  defendant's  yon- 
duct  as  to  the  property  might  be  confidential  and  privileged,  such  privilege 
could  not  extend  to  the  part  of  the  letter  about  the  plaintiff's  conduct  to  his 
mother  and  aunt, 

WcAi'en  v.  Warren,  1  C.  M.  &  R.  250  ;  4  Tyr.  850. 
Simmonds  v.  Dunne,  Ir.  R.  5  C.  L.  358. 
A  personal  attack  on  the  private  life  and  character  of  a  candidate  at  a  parlia- 
mentary election,  published  by  a  voter  in  the  newspapers,  is  not  privileged. 
"  However  large  the  privilege  of  electors  may  be,'  said  Lord  Denman,  C.  J., 
"  it  is  extravagant  to  suppose  that  it  can  justify  the  publication  to  all  the  world 
of  facts  injurious  to  a  person  who  happens  to  stand  in  the  situation  of  a  candi- 
date." 

Buncombe  v.  Darnell,  8  C.  &  P.  222  ;  2  Jur.  32  ;  1  W.W.  &  H.  101. 
Defendant  made  a  speech  at  a  public  meeting  called  to  petition  Parliament, 
and  subsequently  handed  a  copy  of  what  he  had  said  to  the  reporters  for  publi- 
cation in  the  ne*wspapers  ;  such  publication  was  held  to  be  in  excess  of  the 
privilege. 

Pierce  v.  Ellis,  0  Ir.  C.  L.  R.  55. 
A  letter  sent  to  the  newspaper  by  members  of  the  town  council  and  published 
therein,  charging  certain  contractors  for  the  erection  of  the  borough  gaol  with 
"  scamping  "  their  work,  is  not  privileged  ;  although  preferring  the  same  charge 
at  a  meeting  of  the  town  council  probably  would  have  been. 
"  Simpson  v.  Downs,  16  L.  T.  391. 
But  scellarle  v.  Catherall,  14  L.  T.  801. 
A  shareholder  in  a  railway  company  summoned  a  meeting  of  shareholders, 
and  also  invited  reporters  for  the  press  to  attend.     Charges  which  he  made  at 
such  meeting  against  one  of  the  directors  for  his  conduct  of  the  affairs  of  the 
company,  held  not  privileged,  because  persons  not  shareholders  were  present. 
Parsons  v.  Surgey,  4  F.  &  F.  247. 
(257) 


186  QUALIFIED    PRIVILEGE. 

But  where  the  auditors  of  a  company  reported  that  the  manager's  accounts 
were  badly  kept,  and  that  there  was  a  large  deficiency  not  accounted  for  ;  and 
at  the  general  meeting  this  report  with  others  was  submitted  to  the  shareholders, 
and  the  meeting  resolved  that  they  should  be  printed  and  circulated  among  the 
shareholders,  which  was  done.  Held,  that  the  privilege  attaching  to  such  reports 
was  not  lost  merely  by  the  necessary  publication  of  them  to  the  compositors,  &c, 
in  the  ordinary  course  of  printing. 

Lawless  v.  Anglo-Egyptian  Cotton  Co.,  L.  R.  4  Q.  B.  2G2  ;  10  B.  & 

S.  226  ;  38  L.  J.  Q.  B.  129  ;  17  W.  R.  498. 
And  see  Davis  v.  Cutbnsh  and  others,  1  F.  &  F.  587. 
Lake  v.  King,  1  Lev.  240  ;  1  Saund.  131  ;  Sid.  ;  414  ;  1  Mod.  58. 
So  with  an  advertisement  inserted  in  a  newspaper,  defamatory  of  the  plaintiff  ; 
if  such  advertisement  be  necessary  to  protect  the  defendant's  interest,  or  if  [*247] 
advertising  was  the  only  way  of  effecting  the  defendant's  object,  and  such  object 
is  a  legal  one,  then  the  circumstances  excuse  the  extensive  publication.     But  if 
it  was  not  necessary  to  advertise  at  all,  or  if  the  defendant's  object  could  have 
been  equally  well  affected  by  an  advertisment  which  did  not  contain  the  words 
defamatory  of  the  plaintiff,  then  the  extent  given  to  the  announcement  is  evi- 
dence of  malice  to  go  to  the  jury. 

Brown  v.  Croome,  2  Stark.  297. 

Lay  v.  Lawson,  4  A.  &  E.  795  ;  overruling 

Delany  v.  Jones,  4  Esp.  191. 

Gasseit  v.  Gilbert  and  others,  6  Gray  (72  Mass),  94,  ante,  p.  220. 
But  where  the  members  of  a  provincial  assembly  of  Congregationalist 
ministers  passed  a  resolution  condemning  the  conduct  of  the  plaintiff,  one  of 
their  body,  towards  his  congregation,  and  also  a  resolution  directing  that  a  copy 
of  the  first  resolution  be  sent  to  the  Congregational  organs  for  publication,  it 
was  held  in  America  that  such  publication  was  not  too  widespread,  and  that  no 
action  lay. 

Shurtleff  v.  Stevens,  51  Vermont,  501  ;  31  Amer.  R.  698. 

And  see  Oliver  v.  Bentinek,  3  Taunt.  456. 
So  where  the  committee  of  a  lodge  of  Freemasons  expelled  the  plaintiff  from 
the  lodge,  and  plaintiff  appealed  to  the  Grand  Lodge,  the  committee  was  held 
justified  in  printing  and  circulating  among  the  members  of  the  Grand  Lodge,  a 
pamphlet  justifying  their  conduct,  it  being  usual  for  them  to  report  the  trans- 
actions of  their  lodge  to  the  Grand  Lodge  in  that  form. 

Kirkpatrick  v.  Eagle  Lodge,  26  Kansas,  384 ;    40  Amer.  R .  316. 
The  manager  and  the  directors  of  a  joint  stock  company  have  a  common 
interest  in  discussing  the  affairs  of  the  company  ;  but  that  does  not  justify  the 
manager  in  making  personal  charges  of  fraud  against  the  directors  in  a  public 
news-room. 

Waring  v.  M'Caldin,  7  Ir.  C.  L.  R.  282. 

Bewail  v.  Catlin,  3  Wendell  (New  York),  292. 
The  fact  that  defendant's  wife  was  present  on  a  privileged  occasion,  and 
heard  what  her  husband  said,  will  not  take  away  the  privilege,  so  long  as  her 
presence,  though  unneccessary,  was  not  improper. 

Jones  v.  Thomas,  34  W.  R.  104  ;  53  L.  T.  678  ;  50  J.  P.  149. 

Tompson  v.  Dashwood,  11  Q.  B.  D.  43  ;  52  L.  J.  Q.  B-  425  ;  48  L. 
T.  943;  48  J.  P.  55. 
The  defendant,  the  tenant  of  a  farm,  required  some  repairs  to  be  done  at  his 
house  ;  the  landlord's  agent  sent  up  two  workmen,  one  of  whom  was  the  plain- 
tiff. They  made  a  bad  job  of  it ;  the  plaintiff  undoubtedly  got  drunk  while 
on  the  premises  ;  and  the  defendant  wTas  convinced  from  what  he  heard  that 
the  plaintiff  had  broken  open  his  cellar-door  and  drunk  his  cider.  Two  days 
afterwards  the  defendant  met  the  plaintiff  and  a  man  called  Taylor,  and  charged 
the  plaintiff  with  breaking  opening  his  cellar-door,  getting  drunk,  and  spoiling 
the  job.  He  repeated  this  charge  later  in  the  same  day  to  Taylor  alone  in  the 
absence  of  the  plaintiff,  and  also  to  the  landlord's  agent.  Held,  that  the  com- 
munication to  the  landlord's  agent  was  clearly  privileged,  as  both  were  interested 
in  the  repairs  being  properly  done  ;  that  the  statement  made  to  the  plaintiff  in 
Taylor's  presence  was  also  privileged,  if  not  malicious  ;  but  that  the  repetition 

(258) 


PRIVILEGED    REPORTS.  187 

of  the  statement  to  Taylor  in  the  absence  of  the  plaintiff  was  unauthorised  and 
officious,  and  therefore  not  protected,  although  made  in  the  belief  of  it;-,  truth. 
Toogood  v.  Sparing,  1  C.  M.  &  R.  181  ;  4  Tyrw.  582. 


[•«8]  III.  Pbiyileged  Reports. 

(i.)12eports  of  Judicial  Proceedings. 

Every  impartial  and  accurate  report  of  any  proceeding  in  a 
public  law  court  is  privileged,  unless  the  court  lias  itself  prohibited 
the  publication*,  or  the  subject-matter  of  the  trial  be  unfit  for  publi- 
cation. 

This  rule  applies  to  all  proceedings  in  any  court  of  justice, 
superior  or  inferior,  of  record  or  not  of  record.  "  For  this  pur- 
pose no  distinction  can  be  made  between  a  court  of  piepoudre  and 
the  House  of  Lords  sitting  as  a  court  of  justice."  (Per  Lord 
Campbell  in  Lewis  v.  Levy,K  B.  &  E.  537  ;  27  L.  J.  Q.  B.  287  ;  4 
Jur.  N.  8.  970.)  It  is  immaterial  whether  the  proceeding  be  ex  parte 
or  not.  It  appears  to  be  also  immaterial  whether  the  matter  be 
one  over  which  the  court  has  jurisdiction  or  not,  and  whether  it 
disposes  of  the  case  finally  or  sends  it  for  trial  to  a  higher  tribunal. 

The  reason  for  this  privilege  is  thus  stated  by  Lawrence,  J.,  in  it. 
v.  Wright,  8  T.  R.  298.  "  The  general  advantage  to  the  country  in 
having  these  proceedings  made  public  more  than  counterbalances 
the  inconvenience  to  private  persons  whose  conduct  may  be  the 
subject  of  such  proceedings."  Cockburn,  C.  J.,  uses  language 
almost  identical  in  Wason  v.  Walter,  L.  C.  4  Q.  B.  87  ;  8  B.  &  S. 
730  ;  38  L.  J.  Q.  B.  34  ;   17  W.  R.  169  ;   19  L.  T.  418. 

It  is  only  since  1878  that  the  law  has  extended  so  wide  an  immun- 
ity to  reports  of  proceedings  before  police  magistrates  or  justices  of 
the  peace.  Thus,  while  Lewis  v.  Levy  decided  that  a  report  of  a 
preliminary  investigation  before  a  magistrate  was  privileged  if  the 
result  was  that  the  summons  was  dismissed  and  the  person  [*249] 
accused  discharged,  still  Duncan  v.  T/vwaites,  3  B.  &  C.  656  ;  5  D.  & 
R.  547,  is  an  express  authority  for  holding  such  a  report  unprivi- 
leged, if  the  accused  be  ultimately  sent  to  take  his  trial  before  a 
jury.  The  reason  for  the  distinction  is  that  in  the  former  case  the 
decision  is  final,  and  the  investigation  at  an  end  ;  in  the  latter  the 
examination  was  preliminary  merely,  and  the  minds  of  the  future 
jury  might  be  influenced  by  the  publication. 

Again  there  is  an  obvious  distinction  between  an  ex  parte  applica- 
tion, where  the  accused  has  no  opportunity  of  defending  himself, 
and  a  full  trial  where  both  parties  address  the  court  by  their  coun- 
sel or  solicitors,  and  call  what  witnesses  they  please.  There  are 
dicta  of  eminent  judges  which  would  seem  to  deny  any  privilege  to 
fair  and  accurate  reports  of  ex  parte  proceedings  even  in  the  supe- 
rior Courts.  (Per  Maule,  J.,  in  I/oare  v.  Silverlock  (No.  2, 1850), 
9  C.  B.  23  ;  19  L.  J.  C.  P.  215  ;  and  Abbott,  C.  J.,  in  Duncan  v. 
Thwaites,  3  B.  &  C.  556.)  But  Curry  v.  Walter,  1  Bos.  &  P.  525  ;  1 

(259) 


188  QUALIFIED    PRIVILEGE. 

Esp.  456,  is  an  express  decision  that  such  reports  are  privileged  ;  a 
case  which  was  at  one  time  doubted,  hut  is  now  clear  law.  And  now 
the  decision  in  Usill  v.  Hales,  post,  p.  253,  settles  the  law,  and  ex- 
tends immunity  to  all  bond  fide  and  correct  reports  of  all  proceed- 
ings in  a  magistrate's  court,  whether  ex  parte  or  otherwise  ;  and  such 
cases  as  21.  v.  Lee,  5  Esp.  123,  must  he  considered  to  he  overruled, 
in  so  far  at  all  events  as  they  lay  down  any  general  rule  to  the 
effect  that  it  is  unlawful  to  publish  any  report  of  ex  parte  pro- 
ceedings. 

A  third  distinction  was  as  to  matters  coram  non  judice.  It  might 
well  be  contended  that  where  a  magistrate  listens  to  a  slanderous 
complaint,  and  gives  some  advice  as  to  a  matter  wholly  outside  his 
jurisdiction,  he  is  not  discharging  any  magisterial  function  nor  act- 
ing in  any  judicial  capacity.  It  is  as  though  the  conversation  took 
place  in  his  private  drawing-room.  And  to  this  effect  was  the  deci- 
sion in  M'Gregor  v.  T/noaites,  3  B.  &  C.  24  ;  4  D.  &  R.  695.  But  this 
decision  is  practically  overruled  by  Usill  v.  Hales,  in  which  case 
Lord  Coleridge  took  a  distiction  (3  C.  P.  D.  324)  between  "  inher- 
ent want  of  jurisdiction  on  account  of  the  nature  of  the  complaint " 
and  "  what  may  be  called  resulting  want  of  jurisdiction  because  the 
facts  do  not  make  out  the  charge."  His  lordship  assumed  that  the 
application  was  for  a  summons  or  order  under  the  Masters  and 
Workman's  Act,  an  application,  that  is,  which  the  magistrate  would 
have  had  jurisdiction  to  grant,  had  the  facts  when  investigated 
proved  to  warrant  such  a  course.  On  that  assumption,  it  follows, 
of  course,  that  the  magistrate  had  jurisdiction  to  listen  to  the  appli- 
cation, until  the  facts  stated  to  him  made  it  clear  that  he  had  no 
power  to  grant  the  redress  [*250]  applied  for.  But  in  the  libel 
there  is  no  word  as  to  the  Masters  and  Workmen's  Act  ;  it  would 
seem  rather  that  the  applicants  were  desirous  of  inverting  the  usual 
order  of  things,  and  of  prosecuting  their  employer  for  embezzlement. 
No  doubt  in  this  case  it  was  the  duty  of  the  magistrate  to  listen  to  the 
applicant  until  it  became  clear  from  what  he  said  that  the  magistrate 
had  no  jurisdiction  over  the  subject-matter  of  the  complaint.  But 
surely  it  is  equally  the  duty  of  the  magistrate  so  far  to  listen  to  every 
applicant.  And  an  ordinary  newspaper  reporter  can  hardly  be  ex- 
pected to  accurately  distinguish  between  a  magistrate's  "  inherent 
want  of  jurisdiction  "  and  that  which  is  "  merely  resulting."  Lopes, 
J.,  on  the  other  hand,  takes  a  broader  ground  : — "  The  cases,"  he  says 
(3  C.  P.  D.  329), "  are  clear  to  siiow  that  want  of  jurisdiction  will  not 
take  away  the  privilege,  if  it  is  maintainable  on  other  grounds." 
{Buckley v.  Wood,  4  Rep.  14,  a  ;  Cro.  Eliz.  230  ;  Lake  v.  King 
1  Saund.  131  ;  Fairman  v.  Lves,  5  B.  &Ald.  642.)  I  think  we  may 
conclude  that  newspapers  may  safely  report  in  future  everything 
that  takes  place  in  open  coui*t,  even  though  the  magistrate  should 
prove  to  have  no  jurisdiction. 

There  is  nothing,  however,  in  the  case  of  Usill  v.  Hales,  which 
expressly  overrules  the  first  distinction — that  taken  in  Duncan  v.* 
Thwaitcs,  3  B.  &  C.  556 — that  a  fair  report  of  a  magistrate's  decision 
is  privileged  when  it  finally  disposes  of  the  matter  of  the  application, 
but  is  not  privileged  where  the  inquiry  is  but  a  preliminary  one,  and 

(260) 


REPORTS    OF    TRIALS.  189 

the  prisoner  is  committed  to  take  his  trial  a1  the  Assizes  or  the  Cent  ml 
Criminal  Court,  Lord  Campbell  in  Lewis  v.  Levi/,  E.  B.  &  E.  561  ; 
27  L.  J.  Q.  B.  290,  appears  anxious  not  to  overrule  Duncan  v. 
Thwaites,  on  this  point  at  all  events  ;  for  he  is  careful  to  lay  down  the 
rule  that  the  privilege  attaching  to  fair  and  correct  reports  of  pro- 
ceedings taking  place  in  a  public  court  of  justice,  extends  to  pro- 
ceedings taking  place  publicly  before  a  magisl  rate  on  the  preliminary 
investigation  of  a  criminal  charge  terminating  in  the  discharge  by  the 
magistrate  of  the  party  charged."  In  Usill  and  Hales  the  matter  was 
fimilhf  disposed  of  by  the  magistrate  ;  it  was  unnecessary  therefore 
for  the  Court  to  decide  the  point.  But  the  whole  spirit  of  the  decision 
is  against  this  time-honoured  distinction.  Lord  Coleridge  frankly 
admits  (p.  325  )  : — "  I  do  not  doubt  for  my  own  part  that  if  this 
argument  had  been  addressed  to  a  Court  some  sixty  or  seventy 
years  ago,  it  might  have  met  with  a  different  result  from  that 
which  it  is  about  to  meet  with  to-day."  And  then,  after  referring  to 
M.  v.  Fleet,  1  B.  &  Aid.  379,  and  Duncan  v.  Thwaites,  the  learned 
judge  continues  :—"  But  we  are  not  now  living,  so  to  say, 
within  the  shadow  of  those  cases."  And  his  Lordship  quotes  a 
[*  251 J  passage  from  the  judgment  of  the  Court  of  Queen's  Bench, 
in  the  case  of  Wason  v.  Walter,  L.  R.  4  Q.  B.  9:5,  as  "  a  passage 
which  upon  the  whole  I  should  desire  to  adopt  and  adhere  to  :— 
'  Whatever  disadvantages  attach  to  a  system  of  unwritten  law, — 
and  of  these  we  are  fully  sensible, — it  has  at  least  this  advantage, 
that  its  elasticity  enables  those  who  administer  it  to  adapt  it  to  the 
varying  conditions  of  society  and  to  the  requirements  and  habits  of 
the  age  in  which  we  live,  so  as  to  avoid  the  inconveniences  and 
injustice  which  arise  where  the  law  is  no  longer  in  harmony  with  the 
wants  and  usages  and  interests  of  the  generation  to  which  it  is 
immediately  applied.  Our  law  of  libel  has  in  many  respects  only 
gradually  developed  itself  into  anything  like  satisfactory  and 
settled  form.  The  full  liberty  of  public  writers  to  comment  on  the 
conduct  and  motives  of  public  men  has  only  in  very  recent  times 
been  recognised '  .  .  .  Even  in  quite  recent  days  judges,  in  hold- 
ing the  publication  of  the  proceedings  of  courts  of  justice  lawful, 
have  thought  it  necessary  to  distinguish  what  Ave  call  ex  parte 
proceeding's  as  a  probable  exception  from  the  operation  of  the 
rule.  Yet  ex  parte  proceedings  before  magistrates,  and  even  before 
this  Court,  as,  for  instance,  on  applications  for  criminal  informa- 
tions, are  published  every  day  ;  but  such  a  thing  as  an  action  or 
indictment  founded  on  a  report  of  such  an  ex  parte  proceeding  is 
unheard  of  ;  and  if  any  such  action  or  indictment  should  be 
brought,  it  would  probably  be  held  that  the  true  criterion  of  the 
privilege  is  not  whether  the  report  was  or  Avas  not  ex  parte,  but 
whether  it  was  a  fair  and  honest  report  of  what  had  taken  place, 
published  simply  with  a  view  to  the  information  of  the  public,  and 
innocent  of  all  intention  to  do  injury  to  the  reputation  of  the  party 
affected."  (L.  R.  4  Q.  B.  94  ;  3  C.  P.  D.  326.)  Applying  a  similar 
argument,  Ave  know  that  reports  of  all  proceedings  before  magis- 
trates are  published  daily  Avith  impunity,  whether  such  proceedings 
are  finally  disposed  of 'by  the  magistrate,  or  whether   the   case 

(261) 


190  QUALIFIED    PRIVILEGE. 

is  hereafter  to  come  before  a  jury.  Lopes,  J.,  intimates  that 
lie  thinks  it  doubtful  how  far  the  old  authorities  on  this  point 
might  be  followed  in  the  present  day.  (3  C.  P.  D.  329.)  In 
Ireland  the  question  is  practically  settled  by  the  decision  of  the 
majority  of  the  judges  in  R.  v.  Gray,  10  Cox,  C.  C.  184.  I  think, 
therefore,  that  if  it  is  not  already  the  law,  it  soon  will  he  the  law 
in  England  also,  that  a  newspaper  reporter  may  report  everything 
that  occurs  publicly  in  open  court  without  fear  of  any  action,  pro- 
vided only  that  his  reports  are  fair  and  accurate,  and  not  inter- 
spersed Avith  comments  of  his  own.  "The  law  upon  such  a  subject 
must  bend,  to  the  approved  usages  of  society,  though  still  restitig 
upon  the  same  principle,  that  what  is  hurtful  and  indicates  malice 
should  be  punished,  and  that  [*  252]  what  is  beneficial  and  bond 
fide  should  be  protected."  (Per  Lord  Campbell,  C.  J.,  in  X,etois  v. 
Lemj,  E.  B.  &  E.  560  ;  27  L.  J.  Q.  B.  289  ;  4  Jur.  N.  S.  970.) 

Illustrations. 

The  following  passage  appeared  in  the  Daily  News,  the  Standard,  and  the 
Morning  Advertiser,  on  the  same  morning  : — "  Three  gentlemen,  civil  engineers, 
were  among. the  applicants  to  the  magistrate  yesterday,  and  they  applied  for 
criminal  process  against  Mr.  Usill,  a  civil  engineer  of  Great  Queen  Street, 
Westminster.  The  spokesman  stated  that  they  had  been  engaged  in  the  survey 
of  an  Irish  railway  by  Mr.  Usill,  and  had  not  been  paid  what  they  had  earned 
in  their  various  capacities,  although  from  time  to  time  they  had  received  small 
sums  on  account  ;  and,  as  the  person  complained  of  had  been  paid,  they  con- 
sidered that  he  had  been  guilty  of  a  criminal  offence  in  withholding  their 
money.  Mr.  Woolrych  said  it  was  a  matter  of  contract  between  the  parties  ; 
and  although,  on  the  face  of  the  application  they  had  been  badly  treated,  he 
must  refer  them  to  the  County  Court."  Mr.  Usill  thereupon  brought  an  action 
against  the  proprietor  of  each  newspaper.  The  three  actions  were  tried  together 
before  Cockburn,  C.  J.,  at  Westminster,  on  November  15th,  1877.  The  learned 
judge  told  the  jury  that  the  only  question  for  their  consideration  was  whether 
or  not  the  publication  complained  of  was  a  fair  and  impartial  report  of  what 
took  place  before  the  magistrate  ;  and  that,  if  they  found  that  it  was  so,  the 
publication  was  privileged.  The  jury  found  that  it  was  a  fair  report  of  what 
occurred,  and  accordingly  returned  a  verdict  for  the  defendant  in  each  case. 
Held,  that  the  report  was  privileged,  although  the  proceedings  were  c.v  parte, 
and  although  the  magistrate  decided  that  he  had  no  jurisdiction  over  the 
matter. 

Pf?j  I'  SIZj*,,  1 3  C.  P.  D.  319  ;  47  L.  J.  C.  P.  323 ;   26  W.  R. 
I  ml  v.  Brearley  -     Q~i     qq  t    t  ok 
Usill  v.  Clarke     \      371 >  38  L.  T.  6». 
See  M'Qregor  v.  Thwaites,  3  B.  &  C.  24. 
A  fair  and  accurate  report  in  a  newspaper  of  proceedings  before  a  magistrate 
on   a   preliminary  investigation  of    a  charge  of   treason-felony  is  privileged, 
although  the  prisoners  were  ultimately  committed  for  trial,  and  are  awaiting 
trial  at  the  moment  of  publication.     So  held  in  Ireland  by  Lefroy,  C.  J.,  and 
Fitzgerald  and  O'Brien,  J.J.  ;  dissentiente,  Hayes,  J. 

Bc</.  v.  Gray,  10  Cox,  C.  C.  184;   overruling  Duncan  v.  Thwaites,  2 
B.  &  C.  556  ;  5  D.  &.R.  447. 
A  report  of  proceedings  before  a  judge  at  chambers  on  an  application  under 
5  &  6  Vict.  c.  122,  s.  42,  to  discharge  a  bankrupt  out  of  custody,  is  privileged. 
Smith  v.  Scott,  2  C.  &  K.  580. 
The  defendants  presented  a  petition  in  the  Crovden  County  Court  to  adjudi- 
cate the  plaintiff  a  bankrupt ;  and  to  set  aside  a  bill  of  sale  which  they  alleged 
to  be  fraudulent.     The  County  Court  judge  did  not  heax  the  case  in  open 
Court,  but  in  his  own  room  ;  the  public,  however,  could  walk  in  and  out  of 

(262) 


PRIVILEGED    REPORTS.  101 

the  room  at  their  pleasure  during  the  hearing.  Held,  by  Cockbum,  C.  J.,  at 
Nisi  Prius,  that  a  fair  report  of  what  took  place  before  the  County  Court  judge 
in  his  room  was  prima  facie  privileged. 

Myers  v.  Defries,  Times,  July  23d,  1877. 
[*253]  Proceedings  held  in  gaol  before 'a  registrar  in  bankruptcy,  under  the 
Bankruptcy  Act,  1861,  ss.  101, 102,  upon  the  examination  of  adebtorin  custody, 
are  judicial  and  in  a  public  Court.     A  fair  report,  therefore,  of  those   proceed- 
ings is  protected. 

Myalls  v.  Leader  and  others,  L.  R.  1  Ex.  296  ;  12  Jur.  N.  S.  503  ;  4 
H.'&C.  555 ;  35  L.  J.  Ex.  185  ;  14  W.  R.  838  ;  14  L.  T.  563. 
A  fair  and  accurate  report  of  proceedings  before  the  examiners  appointed 
under  9  Geo.  4,  c.  22,  s.  7,  to  inquire  into  the  sufficiency  of  the  sureties  offered 
on  the  trial  of  an  election  petition,  was  held  privileged. 

Cooper  v.  Laicson,  8  A.  &  E.  746  ;  1  W.  W.  &  H.  001  ;  2  Jur.  919  ; 
1  P.  &  D.  15. 
But  Patteson,  J.,  held  that  a  report  of  what  had  occurred  at  the  town-hall  at 
Ludlow  on  the  occasion  of  one  of  his  Majesty's  .commissioners  of  inquiry  going 
to  Ludlow  to  inquire  into  the  state  of  that  corporation,  was  not  privileged. 
Charlton  v.  Watton,  6  C.  &  P.  385. 
A  conversation  took  place  between  a  coroner,  his  officer,  and  the  widow  of 
the  deceased  in  the  room  in  which  the  inquest  was  about   to  be  held,  after 
reporters  and  the  coroner  had  entered  and  taken  their  seats  there,  but  before  the 
jury  had  been  sworn.     The  officer  complained  that  the   body  had  been  im- 
properly removed  from  the  hospital ;  the  widow  complained  of  the  manner  in 
which  she   had   been  served  with  the  summons  to  the   inquest.     Held,    per 
Boweu,  J.,  that  a  fair  report  of  such  conversation  was  privileged. 

Sheppard  v.  Lloyd,  Daily  Chronicle  for  March  11th,  1882. 
But  no  privilege  attaches  to  the  report  of  unsworn  statements  made  by  a 
mere  bystander  at  an  inquest. 

Lynam  v.  Cowing,  6  L.  R.  Ir.  259. 
In  Scotland  there  exists  a  public  register  of  protested  bills  of  exchange, 
established  by  statute,  and  the  registration  of  such  protests  has  by  statute  the 
effect  of  a  "  decreet,"  or  final  judgment  of  the  Court  of  Session.  The  contents 
of  this  register  being  public  property,  the  defendant  published  an  accurate 
transcript  thereof  for  the  benefit  of  merchants.  This  was  held  privileged,  as 
being  but  a  list  of  judgments  of  the  Court. 

Fleming  v.  Newton,  1  H.  L.  C.  363. 
But  where  the  publisher  of  such  a  "Black  List"  left  in  it,  as  a  still  existing 
liability,  a  judgment  which  had  been  annulled  and  satisfied  by  payment,  the 
Irish  Court  "of  Queen's  Bench  held  that  this  inaccuracy  destroyed  all  privilege. 
McNally  v.  Oldham,  16  Ir.  C.  L.  R.  298 ;  8  L.  T.  604. 
And  see  Jones  v.  McGovern,  Ir.  R.  1  C.  L.  681. 
Cosgrave  v.  Trade  Auxiliary  Co.,  Ir.  R.  8  C.  L.  349. 

There  are,  however,  two  cases  in  which  reports  of  judicial  pro- 
ceedings, although  fair  and  accurate,  are  not  privileged,  and  are 
indeed  illegal. 

(i.)  The' first  is  where  the  Court  has  itself  prohibited  the  publica- 
tion, as  it  frequently  did  in  former  days.  "  Every  court  has  the 
power  of  preventing  the  publication  of  its  [*  254]  proceedings 
pending  litigation."  (Per  Turner,  L.  J.,  in  Brook  v.  Bvcois,  29  L. 
J.  Ch.  616  ;  6  Jur.  K  S.  1025  ;  8  W.  R.  688.)  But  such  a  prohibi- 
tion now  is  rare.  (And  see  Levy  v.  Lawson,  E.  B.  &  E.  500  ;  27 
L.  J.  Q.  B.  282.) 

(ii.)  The  second  is  where  the  subject-matter  of  the  trial  is  an 
obscene  or  blasphemous  libel,  or  where  for  any  other  reason  the 
proceedings  are  unfit  for  publication.  It  is  not  justifiable  to  pub- 
lish even  "a  fair  and  accurate  report  of  such  proceedings  ;  such  a 

(263) 


192  QUALIFIED    PRIVILEGE. 

report  will  be  indictable  as  a  criminal  libel.  (See  Be  "  Evening 
Mies;'  3  Times  L.  R.  255.) 

Illustrations. 

•  On  the  trial  of  Thistlewood  and  others  for  treason,  in  1820,  Abbott,  C.  J., 
announced  in  open  Court  that  he  prohibited  the  publication  of  any  of  the  pro- 
ceedings until  the  trial  of  all  the  prisoners  should  be  concluded.  In  spite  of 
this  prohibition,  the  Observer  published  a  report  of  the  trial  of  the  first  two 
prisoners  tried.  The  proprietor  of  the  Observer  was  summoned  for  the  con- 
tempt, and  failing  to  appear,  was  fined  £500. 

R.  v.  Clement,  4  B.  &  Aid.  218. 
Richard  Carlile  on  his  trial  read  over  to  the  jury  the  whole  of  Paine's  "  Age 
of  Reason,"  for  selling  which  he  was  indicted.  After  his  conviction,  his  wife 
published  a  full,  true,  and  accurate  account  of  his  trial,  entitled  "The  Mock 
Trial  of  Mr.  Carlile,"  and  in  so  doing  republished  the  whole  of  the  "Age  of 
Reason"  as  a  part  of  the  proceedings  at  the  trial.  Held,  that  the  privilege 
usually  attaching  to  fair  reports  of  judicial  proceedings  did  not  extend  to  such 
a  colourable  reproduction  of  a  blasphemous  book  ;  and  that  it  is  unlawful  to 
publish  even  a  correct  account  of  the  proceedings  in  a  court  of  justice,  if  such 
au  account  contains  matter  of  a  scandalous,  blasphemous,  or  indecent  nature. 

A",  v.  Mary  <  'arlile  (1819),  3  B.  &  Aid.  107.     See  also  the  remarks  of 
Bayley,  J.,  in 

R.  v.  Creevey,  1  M.  &  S.  281. 
The  Protestant  Electoral  Union  published  a  book,  called  "  The  Confessional 
Unmasked,"  intended  to  show  the  pernicious  influence  exercised  by  Roman 
Catholic  priests  in  the  confessional  over  the  minds  and  consciences  of  the  laity. 
This  was  condemned  as  obscene  in  R.  v.  llicldin,  L.  R.  3  Q.  B.  300  ;  37  L.  J. 
M.  C.  89  ;  10  W.  R.  801  ;  18  L.  T.  395  ;  11  Cox,  C.  C.  19.  The  Union  there- 
upon issued  an  expurgated  edition,  for  selling  which  one  George  Mackey  was 
tried  at  the  Winchester  Quarter  Sessions  on  October  19th,  1870,  when  the  jury, 
being  unable  to  agree  as  to  the  obscenity  of  the  book,  were  discharged  without 
giving  any  verdict.  The  Union  thereupon  published  "  A  Report  of  the  Trial 
of  George  Mackey,"  in  which  they  set  out  the  full  text  of  the  second  edition  of 
"The  Confessional  Unmasked,"  although  it  had  not  been  read  in  open  Court, 
but  only  taken  as  read,  and  certain  passages  in  it  referred  to.  A  police  magis- 
trate thereupon  ordered  all  copies  of  this  "Report  of  the  Trial  of  George 
Mackey  "  [*  25')]  to  be  seized  and  destroyed  as  obscene  books.  Held,  that  this 
decision  was  correct. 

Steele  v.  Brannan,  L.  R.  7  C.  P.  2G1 ;  41  L.  J.  M.  C.  85  ;  20  W.  R. 
607  ;  26  L.  T.  509. 

The  report  must  be  an  impartial  and  accurate  account  of  what 
really  occurred  at  the  trial  ;  else  no  privilege  will  attach.  It  is  the 
duty  of  the  judge  to  exclude  irrelevant  evidence  ;  if  therefore  such 
evidence  be  given  in  Court  and  appear  in  the  report,  this  is  not  the 
fault  of  the  reporter.  {Ryalls  v.  Leader,  L.  R.  1  Ex.  300  ;  35  L. 
J.  Ex.  185  ;  14  W.  R.  838  ;  12  Jur.  N.  S.  503  ;  14  L.  T.  503.)  The 
sworn  evidence  of  the  witnesses  should  be  relied  on,  rather  than  the 
speeches  of  advocates.  Counsel  are  frequently  instructed  to  open 
to  the  jury  facts  which  they  fail  to  prove  in  evidence.  If  such  an 
unsubs'tantiated  statement  be  reported  at  all,  the  reporter  should 
add,  "but  this  the  plaintiff  failed  to  prove"  but  it  would  be  better 
to  avoid  all  allusion  to  the  matter.  Especial  care  should  be  taken 
to  report  accurately  the  summing-up  of  the  learned  judge,  especially 
if  the  case  be  of  more  than  transitory  interest.  In  many  cases  a, 
report  has  escaped  the  charge  of  partiality  on  the  ground  that  it 
contained  an  accurate  report  of  the  judge's  summing-up  of  the  case 

(264) 


INACCURACIES.  193 

to  the  jury.     {Milissich  v.  Lloyds,  40  L.  J.  C.  P.  404  ;    36  L.  T. 
4  J  I  ;  Chalmers  v.  Payne,  2  C.  M.&  R.  150  ;  5  Tyrw.  766  ;  I  <  }ale,  69.) 

Of  course  the  report  need  not  be  verbatim, •  it  may  lie  abiidged 
or  condensed  ;  but  it  must  not  be  partial  or  garbled.  It  need  not 
state  all  that  occurred  in  extenso  /  hut  if  it  omit  any  fact  which 
would  have  told  in  the  plaintiff's  favour,  it  will  he  a  question  for 
the  jury  whether  the  omission  is  material.  Thus  the  en!  ire  sup- 
pression of  the  evidence  of  one  witness  may  render  the  report 
unfair.  {Duncan  v.  Thwaites,  3  B.  &  C.  580.)  But  a  report  will 
be  privileged  if  it  is  "substantially  a  fair  account  of  what  took 
place"  in  Court.  (Per  Lord  Campbell,  C.  J.,  in  Andrews  v.  Chap- 
man, 3  C.  &  K.  2S9.)  "It  is  sufficient  to  publish  a  fair  abstract." 
(Per  Mellish,  L.  J.,  in  Milissich  v.  Lloyds,  [*  256]  46  L.  J.  C.  P. 
405  ;  per  Byles,  J.,  in  Turner  v.  Sullivan  and  others,  0  L.  T.  130.) 

The  privilege  is  not  confined  to  reports  in  a  newspaper  <>r  law 
magazine.  It  attaches  equally  to  fair  and  accurate  reports  issued 
for  any  lawful  reason  in  pamphlet  form  or  in  any  other  fashion. 
Though,  of  course,  if  there  be  any  other  evidence  of  malice,  the 
mode  and  extent  of  publication  will  be  taken  into  consideration 
with  such  other  evidence  on  that  issue.  {Milissich  v.  Lloyds,  40 
L.  J.  C.  P.  404  ;  Salmon  v.  Lsaac,  20  L.  T.  885  ;  Riddell  v.  Clydes- 
dale Horse  /Society,  12  Ct.  of  Session  Cases,  4th  Series,  970.) 

Nor  does  it  matter  by  whom  the  report  is  published  ;  the  priv- 
ilege is  the  same,  as  a  matter  of  law,  for  a  private  individual  as  for 
a  newspaper.  (Per  Brett,  L.  J.,  4G  L.  J.  C.  P.  407.)  "  I  do  not 
think  the  public  press  has  any  peculiar  privilege."  (Per  Bramwell, 
L.  J.,  5  Ex.  D.  56.)  "A  newspaper  has  no  greater  privilege  in 
such  a  matter  than  any  ordinary  person — any  person  is  privileged 
publishing  such  a  report  if  he  does  so  merely  to  inform  the  public." 
(Per  Hannen,  J.,  in  Salmon  v.  Lsaac,  20  L.  T.  at  p.  886  ;  and  see 
3  Times  L.  P.  245.) 

Illustrations. 

In  a  former  action  for  libel  brought  by  the  plaintiff,  the  then  defendant  had 
justified.  The  report  of  this  trial  set  out  the  libel  in  full,  and  gave  the  evidence 
for  the  defendant  on  the  justification,  concluding,  however,  by  stating  that  the 
plaintiff  had  a  verdict  for  £30.  The  jury,  under  the" direction  of  Lord  Abiager, 
took  the  "bane "and  the  "antidote"  together,  and  found  a  verdict  for  the 
defendant,  on  the  ground  that  the  report  when  taken  altogether  was  not  injurious 
to  the  plaintiff.     And  the  Court  refused  a  rule  for  a  new  trial. 

Chalmers  v.  Payne,  5  Tyrw.  766  ;  1  Gale,  09  ;  2  C.  M.  &  R.  153. 

Dicas  v.  Lawson,  ib. 
The  plaintiff  and  M.  were  convicted  of  a  conspiracy  to  extort  money  from  B. ; 
the  report  of  the  trial  stated  that  the  plaintiff  had  written  a  particular  letter, 
which  the  plaintiff  contended  had  not  in  fact  been  written  by  him,  but  by  his 
fellow-conspirator,  M.  Held,  that  as  the  jury  had  convicted  them  of  a  common 
purpose,  and  the  letter  was  written  in  furtherance  of  that  common  purpose  and 
set  out  in  the  indictment  as  an  overt  act  of  the  conspiracy,  it  made  no  difference 
which  of  the  two  wrote  it ;  and  that  the  error,  if  error  it  were,  was  immaterial. 

Stockdale  v.  Tarte  and  others,  4  A.  &  E.  1016. 

Alexander  v.  N.  E.  R.  Co.,  6  B.  &  S.  340 ;    34  L.  J.  Q.  B.  152  ;    13 

W.  R.  651  ;  11  Jur.  N.  S.  619. 

[*257]  A  barrister,  editing  a  book  on  the  Law  of  Attorneys,  refer  red  to  a  case 

lie  Blake,  as  reported  in  30  L.    J.  Q.   B    32,  and  stated  that  Mr.   Blake  was 

struck  off  the  rolls  for  misconduct.     He  was  in  fact  only  suspended  for  two 

13   LI3.  &  SLAN.  (265) 


194  QUALIFIED    PRIVILEGE. 

years,  as  appeared  from  Hie  Law  Journal  report.     The  publishers  were  held 
liable  for  this  carelessness,  although  of  course  neither  they  nor  the  writer  bore 

Mr.  Elake  any  malice.     Damages  £100. 

Blake  v.  Stt  vena  andothers,  4  F.  &  F.  222  :  11  L.  T.  543. 
Gwynn  v.  8.  A'.  h\  Co.,  18  L.  T.  738. 
R.  v.  lofield,  2  Barnard.  128. 
Where  the  report  of  a  trial  gave  none  of  the  evidence,  but  only  an  abridg- 
ment  of   the  speeches  of   counsel,  and    the    defendant    pleaded   that    it   was 
still  in  substance  a  true  report  of  the  trial;  such  plea  was  held  bad  on  de- 
murrer. 

Flint  v.  Pike,  4  B.  &  Cr.  473  :  6D.&R.  528. 
Kane  v   Mulvany,  Ir.  R.  2  C.  L.  402. 
A  report  is  not  privileged  which  does  not  give  the  evidence,  but  merely  sets 
out  the  circumstances  "  as  stated  by  the  counsel "  for  one  party. 
Saund  rs  v  Mills,  0  Bing.  213  ;  3  M.  &  P.  520. 
Woodgate  v.  Eidout,  4  F.  &  F.  202. 
Still  less  will  it  be  privileged,  if  after  so  stating  the  case  the  only  account 
given  of  the  evidence  is   that  the  witnesses  "  proved  all  that  had  been*  stated  by 
the  counsel  for  the  prosecution." 

Lewis  v.  Walter,  4  B.  &  Aid.  605. 
The  Morning  Post,  in  reporting  proceedings  taken  against  the  plaintiff  in  the 
Westminster  Police  Court,  stated  that  certain  facts  "appealed  from  the  evi- 
dence." No  evidence  had  in  fact  been  given  of  them  ;  but  they  had  been 
stated  in  the  opening  of  the  solicitor  for  the  prosecution.  On  these  facts,  Lord 
Coleridge,  C.  J.,  directed  the  jury  to  find  for  the  defendant.  But  the  Divisional 
Court  granted  a  new  trial  on  the  ground  that  there  was  a  substantial  discrep- 
ancy between  the  report  and  what  really  occurred,  and  that  the  question  should 
therefore  have  been  left  to  the  jury  whether  the  report  was  a  fair  one  ;  and  this 
decision  was  affirmed  on  appeal, 

Ashmore  v.  Borthwick,  49  J.  P.  792  ;  2  Times  L.  P.  113,  209.      ' 
Where  a  report  in  the  Timesoi  a  preliminary  investigation  b<  fore  a  magistrate 
set  out  at  length  the  opening  of  the  counsel  for  the    prosecution,  but  entirely 
omitted  the  examination  and  cross-examination  of  the  prosecutor,  the  only  wit- 
ness, merely  saying  that  "  his  testimony  supported   the  statement  of  his  coun- 
sel "  the  jury  found  a  verdict  for  the  plaintiff.     Damages  £10. 
Pvnero  v.  Goodlake,  15  L.  T.  G76. 
[N.B. — The  headnote  to  this  case  is  strangely  misleading  :  the  proceedings 
were  not  ex  parte  ;  the  defendant,   himself  a  solicitor,   was  present  and   cross- 
examined  the  witnesses.     The   important  monosyllable  "  no  "  appears   to  be 
omittedin  the  report  of  the  argument  of  Coleridge,  Q.  ('.,  p.  077.] 

The  mother  of  a  lady,  who  was  dead  and  buried,  applied  to  the  coroner  on 
affidavits  for  an  order  that  the  body  might  be  exhumed  :  the  affidavits  imputed 
that  she  had  been  murdered  by  her  husband.  Thereupon  the  coroner  issued  his 
warrant  for  exhumation.  A  newspaper  reported  this  fact,  and  proceeded  to 
state  the  contents  of  these  affidavits  in  a  sensational  paragraph,  commencing 
"  From  inquiries  made  by  our  reporter  it  appears  that  the  deceased,"  &c.  The 
[*258]  reporter  had  made  no  inquiries;  he  hail  merely  copied  the  affidavits. 
He  was  convicted  and  fined  £50. 

B.  v.  Andrew  Gray,  26  J.  P.  663. 
Where  the  report  of  a  criminal  trial  gave  the  speech  for  the  prosecution,  a 
brief  resumi  of  the  speech  of  the  prisoner's  counsel,  who  called  no  witnesses,  and 
the  whole  of  the  Lord  Chief  Baron's  summing  up  in  extenso  ;  but  it  did  not  give 
the  evidence  except  in  so  far  as  it  was  detailed  in  the  judge's  summing  up  ; 
Lord  Coleridge,  C.  J.,  held  the  report  necessarily  unfair  because  incomplete,  and 
refused  to  leave  the  question  of  fairness  to  the  jury.  But  the  Court  of  Appeal 
held  that  he  was  wrong  in  so  doing  ;  that  it  is  sufficient  to  publish  a  fair  abstract 
of  the  trial,  and  that  the  judge's  summing  up  was  presumably  such  an  abstract  ; 
that  the  question  of  fairness  must  be  left  to  the  jury,  and  that  therefore  there 
must  be  a  new  trial. 

Milissich  v.  Lloyds  (C.  A.),  46  L.  J.  C.  P.  404  ;  36  L.  T.  432  ;  13  Cox, 
C.  C.  575. 

(266) 


NO    COMMENTS.  105 

An  accurate  report  of  a  portion  of  a  judicial  proceeding  will  still 
be  privileged,  if  it  does  not  purport  to  be  a  report  of  the  whole. 
Thus,  where  a  trial  lasts  more  than  one  day,  reports  published  in  the 
newspapers  each  morning  are  protected.  Where  a  man  publishes  a 
portion  only,  when  it  is  in  his  power  to  publish  the  whole,  this  frag- 
mentary publication  will  be  evidence  of  malice,  if  the  pari  selected 
and  published  tell  more  against  the  plaintiff  than  a  report  of  the 
whole  trial  would  have  done,  e.g.,  if  the  opening  speech  of  one  coun- 
sel or  the  evidence  on  one  side  only  were  published  after  the  trial 
was  over.  But  the  judgment  or  summing  up  of  the  learned  judge 
may  always  be  separately  published  ;  for  it  is  a  distinct  part  of  the 
proceedings,  not  affected  by  any  other,  complete  in  itself  and  fairly 
severable  "from  the  rest  ;  it  is  also  presumably  a  fair  summary  of  the 
whole  proceedings.  (Milissich  v.  .Lloyds  (C.  A.),  40  L.  J.  ('.  P. 
404  ;   30  L.  T.  423  ;   13  Cox,  C.  C.   575.) 

Illustrations. 

Where  judicial  proceedings  last  more  than  one  day,  and  their  publication  is 
not  expressly  forbidden  by  the  Court,  a  report  published  in  a  newspaper  evi  ry 
morning  of  "the  proceedings  of  the  preceding  day,  is  privileged,  if  fair  and 
accurate  ;  but  all  comment  on  the  case  must  be  suspended  till  the  proceedings 
terminate. 

Lewis  v.  Levy,  E.  B.  &  E.  537  ;  27  L.  J.  Q.  B.  282  ;  4  Jur.  N.  S. 
970. 

[*259]  The  sentence  of  a  court  martial  may  be  read  at  the  bead  of  every 
regiment.     Per  Heath,  J.,  in 

Oliver  v.  Bentinck,  3  Taunt,  at  p.  459. 
The  plaintiff  had  sued  defendants  in  the  Chancery  Division,  and  the  action 
was  dismissed  with  costs.  Defendants  thereupon  published,  in  the  form  of  a 
pamphlet,  a  verbatim  report  of  the  whole  judgment,  taken  from  the  shorthand 
writer's  notes,  but  omitting  all  the  evidence  and  speeches  on  either  side.  Tire 
jury  having  negatived  malrce,  the  Court  of  Appeal  held  the  pamphlet 
privileged. 

MacDougall  v.  Knight  <£•  Son  (C.  A.),  17  Q.  B.  D.  636  ;  55  L.  J.  Q. 
B.  464  ;  34  W.  R.  727  ;  55  L.  T.  274. 
A  weekly  paper  stated,  on  December  21st,  1881,  that  plaintiff  had  been 
brought  up  at  the  Nottingham  Police  Court  on  the  preceding  Monday  (15th) 
and  charged  with  obtaining  money  on  false  pretences,  and  that  "  a  number  of 
other  charges  will  be  brought  against  him."  It  omitted  all  mention  of  the  fact 
that  plaintiff  had  been  brought  up  again  on  remand  on  the  preceding  Thursday 
(18th)  and  triumphantly  discharged.  The  jury  awarded  the  plaintiff  £45  m 
addition  to  the  £5  which  defendant  had  paid  into  Court  under  Lord  Camp- 
bell's Act. 

Grimwade  v.  Dicks  and  others,  2  Times  L.  R.  627. 
Where  the  plaintiff  in  a  trade-mark  case  failed  on  all  points  but  one,  and 
afterwards  published  a  "  caution"  to  the  trade,  which  stated  the  effect  of  the 
judgment  accurately  so  far  as  it  was  in  his  favour,  but  omitted  all  allusion  to 
the  "parts  of  the  subject  in  defendant's  favour,  North,  J.,  held  the  report 
unfair,  and  granted  an  injunction  restraining  its  circulation. 

Hayward  &  Co.  v.  Haywwrd  &  Sons,  34  Ch.  D.   198  ;   56  L.  J.   Ch. 
287  ;  35  W.  R.  392  ;'  55  L.  T.  729. 

The  reporter  niust  add  nothing  of  his  own.  He  must  not  state 
his  opinion  of  the  conduct  of  the  parties,  or  impute  motives  there- 
for :  above  all,  he  must  not  insinuate  that  a  particular  witness 
committed  perjury.     That  is  not  a  report  of  what  occurred  ;    it  is 

(267) 


100  QUALIFIED    PRIVILEGE. 

the  comment  of  the  writer  on  what  occurred,  and  to  this  no  privi- 
lege attaches.  Often  no  doubt  such  comments  may  be  justified  on 
another  ground,  that  they  are  fair  and  bond  fide  criticism  on  a 
matter  of  public  interest  and  are  therefore  not  libellous.  (See 
ante,  c.  II.  pp.  32-52.)  But  such  observations,  to  which  quite 
different  considerations  apply,  should  not  be  mixed  up  with  the 
history  of  the  case.  "  If  any  comments  are  made,  they  should  not 
be  made  as  part  of  the  report.  The  report  should  be  confined  to 
what  takes  place  in  Court,  and  the  two  things,  report  and  comment, 
should  be  kept  separate."  (Per  Lord  Campbell,  C.  J.,  in  Andrews  v. 
|  ^260]  Chapman,  3  C.  &  K.  288.)  And  all  sensational  headings  to 
reports  should  be  avoided. 

Illustrations. 

The  captain  of  a  vessel  was  charged  before  a  magistrate  with  an  indecent 
assault  upon  a,  lady  on  board  his  own  ship.  The  defendant's  newspaper  pub- 
lished a  report  of  the  case,  interspersed  with  comments  which  assumed  the 
guilt  of  the  captain,  commended  die  conduct  of  the  lady,  and  generally  tended 
to  inflame  the  minds  of  the  public  violently  against  the  accused.  Held,  that  no 
privilege  attached  to  such  comments  and  that  the  report  was  neither  fair  nor 
dispassionate. 

!  R.  v.  fflsher  and  others,  2  Camp.  5G3. 

And  see  R.  v.  Lee,  5  Esp.  123. 
R.  v.  Fleet,  1  B.  &  Aid.  379. 
•  It  is  libellous  to  publish  a  highly-coloured  account  of  criminal  proceedings, 
mixed  with  the  reporter's  own  observations  and  conclusions  upon  what  passed 
in  court,  headed  "Judicial  Delinquency,"  and  containing  an  insinuation  that. 
the  plaintiff  ("  our  hero  ")  had  committed  perjury  :  and  it  is  no  justification  to 
pick  out  such  parts  of  the  libel  as  contain  an  account  of  the  trial,  and  to  plead 
that  such  parts  are  true  and  accurate,  leaving  the  extraneous  matter  altogether 
unjustified. 

Stiles  v.  Ndhes,  7  East,  493  ;  same  case  sub  nomine  Carr  v.  Jones,  3 
'  Smith,  491. 

.  The  report  of  a  i  rial  set  out  the  speech  for  the  counsel  for  the  prosecution, 
and  then  added  : — "  The  first  witness  was  R.  P.,  who  proved  all  that  had  been 
stated  by  the  counsel  for  the  prosecution  :  "  but  owing  to  the  absence  of  a  piece 
of  formal  evidence  in  no  way  bearing  on  the  merits  of  the  case,  "  the  jury, 
under  the  direction  of  the  learned  judge,  were  obliged  to  give  a  verdict  of 
acquittal,  to  the  great  regret  of  a  crowded  court,  on  whom  the  statement  and 
•the  evidence,  so  far  as  it  went,  made  a  strong  impression  of  their  guilt." 
Hi  hi,  that  no  privilege  applied. 

Lewis  v.  Walter,  4  B.  &  Aid.  605. 

Roberts  v.  Brown,  10  Bing.  519  ;  4  Moo.  &  Sc.  407. 

On  an  examination  into  the  sullieiency  of  sureties  on  an  election  petition, 
under  9  Geo.  IV.  c.  22,  s.  7,  affidavits  were  put  in  to  show  that  one  of  them 
(the  plaintiff)  was  embarrassed  in  his  affairs,  and  an  insufficient  surety.  A 
newspaper  report  of  the  examination  proceeded  to  ask  why  the  plaintiff, 
being  wholly  unconnected  with  the  borough,  should  take  so  much  trouble 
about  the  matter.  "  There  can  be  but  one  answer  to  these  very  natural  and 
reasonable  queries,  he  is  hired  for  the  occasion."  Held,  that  this  question  and 
answer  formed  no  part  of  the  report  ;  and  therefore  enjoyed  no  privilege  ;  and 
that  it  was  properly  left  to  the  jury  to  say  whether  they  were  a  fair  and  bond 
fuh1  comment  on  a  matter  of  public  interest  in  that  borough.  Verdict  for  the 
plaintiff.     Damages  £100. 

Cooper  v.  Lawson,  8  A.  &  E.  746  ;  1  W.  W.  &  IT.  601  ;    2  Jur.  919  ; 
1  P.  &  D.  15. 

The  Observer  gave  a  true  and  faithful  account  of  some  proceedings  in  the 
Insolvent  Debtors  Court,  but  headed  it  with  the  words  "  Shameful  conduct  of 
t*261]  an  attorney."  Held,  that  for  those  words,  as  they  were  not  justified,  the 
plaintiff  was  entitled  to  recover. 

(268) 


PLAINTIFF    MUST    PROVK    MALICE.  107 

Clement  v.  Lewis,  (Exch.  Ch.),  3  Br.   &  B.  297  ;    3  B.  &  Aid.  702; 

7  Moore,  200. 
Bishop  v.  Latimer,  4  L.  T.  775. 
A  paragraph  was  headed  "  An  Honest  Lawyer,"  and  stated  thai  the  plaintiff 
had  been  reprimanded  by  one  of  the  masters  of  the  Queen's  Bench  "for  what 
is  called  sharp  practice  in  his  profession."     Held,  libellous. 

BoydeU  v.  Jones,  4  M.  &  W.  446  ;  1  II.  &  II.  408  ;  7  Dowl.  210. 
Mint  v.  Pike,  4  B.  &  C.  473  ;  6  I).  &  R.  528. 
A  report  of  the  hearing  of  a  charge  of  perjury  before  a  magisl  rate  was  headed 
"Wilful  and  Corrupt  Perjury,"  and  staled  that  the  "evidence  before  the 
magistrate  entirely  negatived  the  story  of  the"  plaintiff.  The  jury  found  a 
verdict  for  the  defendant,  on  the  ground  that  it  was  a  fair  and  correct  report 
of  what  occurred  at  the  hearing.  But  the  Court,  set  aside  the  verdict  on  this 
count,  and  entered  a  verdict  for  the  plaintiff  with  nominal  damages. 

I,  wis  v.  L<  vy,  E.  B.  &  E.  537  ;  27  L.  J.  Q.  B.  282  ;  4  Jur.  N.  S.  970. 
The  law  is  the  same  in  America. 

Thomas  v.  Croswell,  7  Johns.  (N.  Y.  Supr.  Court)  264. 
Commonwealth  v.  Blandiwj,  3  Pick.  (20  Mass.)  o()4. 

The  privilege  attaching  to  fair  and  accurate  reports  may  be 
rebutted  by  proof  of  actual  malice.  Reports  of  judicial  proceed-' 
ings  are  not  absolutely  privileged,  by  whomsoever  published. 
(Stevens  v.  Sampson,  5  Ex.  D.  53  ;  49  L.  J.  Q.  B.  120.)  But  it  is 
of  course  very  difficult  to  prove  that  an  ordinary  newspaper  reporter 
has  been  actuated  by  malice  :  whereas  if  one  of  the  parties  to  a 
cause  or  his  solicitor' sent  the  report,  the  jury  would  probably  start 
with  a  presumption  that  the  report  was  biassed  and  unfair.  (See 
the  remarks  of  Wood,  V.  C,  in  Coleman  v.  West  Hartlepool  Har- 
bour and  Railway  Co.,  2  L.  T.  766  ;  8  W.  R.  734.) 

Illustrations. 

A  churchwarden  obtained  a  writ  of  prohibition  against  the  Bishop  of  Chi- 
chester on  an  affidavit  which  falsely  stated  the  facts.  He  immediately  had  the 
writ  translated  into  English,  and  dispersed  2,000  copies  of  such  translation  all 
over  the  kingdom,  with  a  title-page  alleging  that  by  such  writ  "  the  illegality 
of  oaths  is  declared,"  which  was  not  the  case.  Held,  "  a  most  seditious  libel." 
Wdterfleld  v.  Bishop  of  Chichester,  2  Mod.  118. 

[*262]  Defendant  published,  in  the  form  of  a  circular,  headed  "  Take  notice. 
Important  to  Farmers,"  a  fairly  accurate  report  of  two  actions  brought  by  the 
plaintiff  in  the  Ashford  County  Court  to  recover  the  price  of  manures  he  had 
sold.  These  circulars  were  extensively  distributed  on  market  days  in  the  home 
and  adjoining  counties,  and  plaintiff's  "business  consequently  fell  off.  The  jury 
considered  that  the  defendant  published  it  with  a  view  of  injuring  the  plaintiff. 
Damages  £287. 

Salmon  v.  Isaac,  20  L.  T.  885. 

In  a  County  Court  action,  Kcttlefold  v.  Faleher,  the  defendant,  a  solicitor, 
appeared  for  Nettlefold,  and  commented  severely  on  the  conduct  of  the  plaintiff,, 
who  was  Fulcher's  agent  and  debt  collector.  The  defendant  sent  to  the  local 
newspapers  a  report  of  the  case,  which  the  jury  found  "  was  in  substance  a  lair 
report;"  but  they  also  found  that  "it  was  sent  with  a  certain  amount  of 
malice."  Verdict 'for  the  plaintiff.  Damages  40s.  On  appeal,  it  was  argued 
that  the  defendant  was  entitled  to  judgment  on  the  first  finding  of  the  jury, 
and  that  the  motive  which  the  defendant  had  in  sending  the  report  was  imma- 
terial. But  the  Court  of  Appeal  held  that  Cockburn,  C.  J.,  was  right  in  direct- 
ing judgment  to  be  entered  for  the  plaintiff. 

Stevens  v.  Sampson,  5  Ex.  D.  53  ;  49  L.  J.  Q.  B.  120  ;  28  ^  .  R.  8,  ; 
41  L.  T.  782. 

Plaintiff  brought  an  action  against  defendant,  and  applied  for  an  injunction. 
Defendant  applied  at  the  same  time  for  a  receiver,  which  was  refused.     Tlierc- 

(269) 


198  QUALIFIED    PRIVILEGE. 

upon  defendant  said  that  he  would  "  make  it  d d  hot  for  Dodson,"  and 

Inserted  in  a  newspaper  he  owned  a  report  of  the  application,  setting  out  all  his 
own  counsel  had  said  against  the  plaintiff's  solvency,  etc.,  at  full  length,  hut 
omitting  all  mention  of  plaintiff's  affidavit.  Held,  ample  evidence  of  malice. 
Damages  £250. 

Dodson  v.  Omen,  2  Times  L.  R.  111. 
The  defendants  presented  a  petition  in  the  Croydon  County  Court  to  adjudi- 
cate the  plaintiff  a  bankrupt,  and  to  set  aside  a  bill  of  sale  which  they  alleged 
to  be  fraudulent.  The  County  Court  judge  heard  the  case  in  his  own  room, 
where  no  reporters  were  present,  and  decided  that  the  bill  of  sale  was  fraudu- 
lent. After  the  case  was  over,  the  defendants  sent  for  a  reporter  to  the  Grey- 
hound Hotel,  and  gave  him  an  account  of  the  proceedings  before  the  County 
Court  judge,  from  which  he  drew  up  a  report,  which  appeared  in  several  papers. 
The  jury  found  that  the  report  was  "  fair  as  far  as  it  went  ;"  but  it  did  not 
state  the  fact  that  the  plaintiff  had  announced  his  intention  to  appeal.  Held, 
that  neither  this  omission,  nor  the  fact  that  the  report  was  furnished  by  one  of 
the  parties,  instead  of  being  taken  by  the  reporter  in  the  usual  way,  was,  by 
itself,  sufficient  to  destroy  the  privilege  attaching  to  all  fair  reports  of  legal 
proceedings.  (Per  Cockburn,  C.  J.,  at  Nisi  Prius,  Myers  v.  Defries,  Times, 
July  23rd,  1877.)  But  the  jury  being  satisfied  from  the  whole  circumstances 
that  the  defendants  furnished  the  report  with  the  express  intention  of  injuring 
the  plaintiff,  gave  the  plaintiff  £230  damages  on  the  first  trial,  and  one  farthing 
damages  on  the  second. 

Meyers  v.  Defries,  4  Ex.  D.  176  ;  5  Ex.  D.  15,  180  ;  48 L.  J.  Ex.446  ; 
28  W.  R.  406  ;  40  L.  T.  795  ;  41  L.  T.  659. 

And  see  Saxby  v.  Easterbrook,  3  C.  P.  D.  339  ;  27  W.  R.  188. 

[*263]  Hence  in  these  cases  there  may  be  two  distinct  questions  for 
the  jury  : — (i.)  Is  the  report  fair  and  accurate  ?  If  so,  it  is  prima 
facie  privileged  ;  if  not,  verdict  for  the  plaintiff,  (ii.)  Was  the 
report,  though  fair  and  accurate,  published  maliciously  ?  Was  it  pub- 
lished solely  to  afford  information  to  the  public  and  for  the  benefit 
of  society,  without  any  reference  to  the  individuals  concerned  ;  or 
was  it  published  with  the  malicious  intention  of  injuring  the  reputa- 
tion of  the  plaintiff  ?  The  second  question  of  course  only  arises 
when  the  first  has  been  already  answered  in  the  affirmative. 

And,  of  course,  there  is  in  each  case  the  previous  question  for  the 
judge,  "Is  there  any  evidence  to  go  to  the  jury  of  inaccuracy  or  of 
malice  ?  "  Where  there  is  no  suggestion  of  malice  and  no  evidence 
on  which  a  reasonable  man  could  find  that  the  report  is  not  absolutely 
fail-,  the  judge  should  stop  the  case  and  direct  a  verdict  for  the  de- 
fendant :  e.  g.  where  the  report  is  verbatim  or  nearly  so  ;  or  corre- 
sponds in  all  material  particulars  with  a  report  taken  by  an  impartial 
shorthand  writer.  (Per  Brett,  L.  J.,  in  Milissich  v.  Lloyds,  40  L.J. 
C.  P.  407.)  But  if  anything  be  omitted  in  the  report  which  could 
make  any  appreciable  difference  in  the  plaintiff's  favour,  or  anything 
erroneously  inserted  which  could  conceivably  tell  against  him,  then 
it  is  a  question  for  the  jury  whether  such  deviation  from  absolute 
accuracy  makes  the  report  unfair  ;  and  the  judge  at  Nisi  Prius  should 
not  direct  a  verdict  for  either  party.  (Risk  Allah  Be;/  v.  Whitehurst 
and  others,  18  L.  T.  615  ;  Street  v.'  Licensed  Victuallers  Society,  22 
W.  R.  553  ;  Ashmore  v.  Borthwick,  49  J.  P.  792  ;  2  Times  L.  R. 
113,  209  ;  ante,  p.  257.) 

The  jury  in  considering  the  question  should  not  dwell  too  much 
on  isolated  passages  :  they  should  consider  the  report  as  a  whole. 
They  should  ask  themselves  what  impression  would  be  made  on  the 

(270) 


PARLIAMENTARY    REPORTS.  199 

mind  of  an  unprejudiced  reader  who  reads  the  report  st  raighl  through 
knowing  nothing  about  the  case  beforehand.  Slight  errors  may 
easily  occur  ;  and  if  such  errors  d<>  not  substantially  alter  the  impres- 
sion of  the  matter  which  the  ordinary  reader  would  receive,  the 
jury  should  find  for  the  defendant.  (Stockdale  v.  Tarte  and  others, 
4  A.  &  E.  1016  ;ante,  p.  25G.)  If,  however,  there  is  a  substantial 
misstatement  of  any  material  fact,  and  such  misstatement  is  pre- 
judicial to  the  reputation  of  the  plaintiff,  then  the  report  is  unfair 
and  inaccurate,  and  the  jury  should  find  for  the  plaintiff. 

[*9M]  (ii)  Jleports  of  Parliamentary  Proceedings. 

Every  fair  and  accurate  report  of  any  proceeding  in  either  House 
of  Parliament,  or  in  any  committee  thereof,is  privileged,  even  though 
it  contain  matter  defamatory  of  an  individual. 

The  analogy  between  such  reports  and  those  of  legal  proceedings 
is  complete.  Whatever  would  deprive  a  report  of  a  trial  of  immu- 
nity, will  equally  deprive  a-  report  of  parliamentary  proceedings  of 
all  privilege. 

There  was  for  a  long  time  great  doubt  on  this  subject,  but  the 
law  is  now  clearly  and  most  satisfactorily  settled  by  the  decision  in 
Wason  v.  Walter,  L.  R.  4  Q.  B.  73;  38  L.  J.  Q.  B.  34;  17  W.  R.  1G9; 
19  L.  T.  409.  Such  doubt  was  caused  by  the  fact  that  there  were 
Standing  Orders  of  both  Houses  of  Parliament  prohibiting  such  pub- 
lications ;  and  it  was  argued  with  some  force  that  no  privilege  could 
attach  to  any  report  which  was  published  in  contravention  of  such 
Standing  Orders,  and  was  therefore  in  itself  a  contempt  of  the  House. 
We  have  seen  {ante,  p.  254)  that  when  a  learned  judge  expressly 
prohibits  the  publication  of  the  proceedings  before  him,  any  report 
of  them  is  a  contempt  and  wholly  unprivileged.  (li.  v.  Clement,  4 
B.  &  Aid.  218.)  And  the  earliest  reports  of  parliamentary  proceed- 
ings were  only  published  in  fear  and  trembling  as  "  Debates  in  the 
Senate  of  Lilliput,"  with  the  names  of  the  speakers  disguised.  And 
even  for  such  reports  Cave,  the  editor  of  the  GentlemcaSs  Magazine, 
was  cited  before  the  House  of  Lords  for  breach  of  privilege  (April, 
1747)  ;  and  Johnson's  pen  ceased  to  indite  ponderous  speeches  for 
"  Whig  dogs."  But  in  1749,  Cave  began  again,  and  his  reports  now 
took  the  form  of  letters  from  an  M.  P.  to  a  friend  in  the  country. 
After  1752  they  were  avowedly  printed  as  reports  ;  but  still  only  the 
initials  of  the  speakers  were  given.  As  late  as  1801  the  printer  and 
publishers  of  the  Morning  Herald  were  committed  to  the  custody 
of  Black  Rod,  for  publishing  an  account  of  a  debate  in  the  House  of 
Lords  ;  but  then  such  an  account  Avas  expressly  declared  to  be  "  a 
scandalous  misrepresentation  "  of  what  had  really  occurred.  And 
now  such  Standing  Orders  are  quite  obsolete. 

[*2G5]  A  speech  made  by  a  member  of  Parliament  in  the  House 
is  of  course  absolutely  privileged.  If  he  subsequently  causes  his 
speech  to  be  printed,  and   circulates  it  privately  among  his  constit- 

(271) 


2U0  QUALIFIED    PRIVILEGE. 

uents,  bond  fide  for  their  information  on  any  matter  of  general  or 
local  interest,  a  qualified  privilege  would  attach  to  such  report  ; 
[although  such  publication  is  expressly  forbidden  by  an  obsolete 
order  of  the  House  of  Commons,  passed  in  1641  and  still  a  Standing- 
Order  of  the  House  ;  2  Commons' Journal,  209].  (Per  Lord  Camp- 
bell, C.  J.,  and  Crompton,  J.,  in  JJarisou  v.  Duncan,  7  E.  &  I!. 
233;  2G  L.  J.  Q.  B.  1()7;  and  Cockburn,  C.  J.,  in  Wason  v. 
Walter,  L.  R.  4  Q.  B.  95  ;  38  L.  J.  Q.  B.  42  ;  1!)  L.  T.  416.)  But 
if  a  member  of  Parliament  publishes  his  speech  to  all  the  world, 
with  the  malicious  intention  of  injuring  the  plaintiff,  he  -will  be 
liable  both  civilly  and  criminally.  (li.  v.  Lord  Abingdon,  1  Esp. 
226  ;  11.  v.  Creevey,  1  M.  &  S.  273.) 

Illustrations. 

The  defendant  published  the  report  of  a  select  committee  of  the  House  of 
Commons,  which  contained  a  paragraph  charging  an  individual  with  holding 

views  hostile  to  the  government.  But  the  Court  refused  to  grant  a  criminal 
information,  on  the  express  ground  that  the  publication,  was  a  true  copy  of  a 
proceeding  in  Parliament. 

B.  v.    Wright  (1799),  8  T.  R.  293. 

The  plaintiff  induced  Earl  Russell  to  present  a  petition  to  the  House  of 
Lords,  charging  a  high  judicial  officer  with  having  suppressed  evidence  before 
an  election  committee  some  thirty  years  previously.  The  charge  was  shown 
to  be  wholly  unfounded,  and  the  conduct  of  the  plaintiff  in  presenting  such  a 
petition  was  severely  commented  on  by  the  Earl  of  Derby  and  others  in  the 
debate  which  followed.  The  plaintiff  sued  the  proprietor  of  the  Times  for 
reporting  this  debate.  Cockburn,  C.  J.,  directed  the  jury,  that  if  they  were 
satisfied  that  the  report  was  faithful  and  correct,  it  was  in  point  of  law  a  privi- 
leged communication  ;  and  the  Court  of  Queen's  Bench  subsequently  discharged 
a  rule  nisi  which  had  been  obtained  for  a  new  trial  on  the  ground  of  mis- 
direction. 

Wason  v.  Walter,  L.  R.  4  Q.  B.  73  ;  8  B.  &  S.  671  ;  38  L.  J.  Q.  B. 
34  ;  17  W.  R.  169  ;  19  L.  T.  409. 

The  proceedings  of  any  committee  of  the  House  of  Lords  may  be  reported 
and  commented  on. 

Kane  v.  Mulvany,  Ir.  L.  R.  2  C.  L.  402. 

t*23C]  (iii.)    Other  Reports. 

By  the  Newspaper  Libel  and  Registration  Act,  1881  (44  &  45 
Vict.  c.  60),  s.  2,  "  Any  report  published  in  any  newspaper  of  the 
proceedings  of  a  public  meeting  shall  be  privileged,  if  such  meeting 
was  lawfully  convened  for  a  lawful  purpose  and  open  to  the  public, 
and  if  such  report  was  fair  and  accurate,  and  published  without 
malice,  and  if  the  publication  of  the  matter  complained  of  was  for 
the  public  benefit :  provided  always,  that  the  protection  intended 
to  be  afforded  by  this  section  shall  not  be  available  as  a  defence 
in  any  proceeding,  if  the  plaintiff  or  pi'osecutor  can  show  that  the 
defendant  has  refused  to  insert  in  the  newrspaper  in  which  the 
report  containing  the  matter  complained  of  appeared  a  reasonable 
letter  or  statement  of  explanation  or  contradiction  by  or  on  behalf 
of  such  plaintiff  or  prosecutor." 

No  other  reports  are  privileged.  If  any  one  publishes  an  account 
of  the  proceedings  of  any  meeting  of  a  town-council,  board  of 
guardians,  or  vestry,  of  the  shareholders  in   any  company,  of  the 

(272) 


NEWSPAPEB    REPOETS.  201 

subscribers  to  any  charity,  or  of  any  public  meeting,  political  or 
otherwise,  and  such  account  contains  expressions  defamatory  of  the 
plaintiff,  the  fact  that  it  is  a  fair  and  accurate  report  of  what 
actually  occurred  will  not  avail  as  ;i  defence,  though  it  may  be  urged 
in  mitigation  of  damages  ;  unless  the  case  comes  within  the  above 
section.  By  printing  and  ptiblishing  the  statements  of  the  various 
speakers,  he  lias  made  them  his  own  ;  and  musl  either  justify  and 
prove  them  strictly  true,  or  rely  upon  their  being  fair  and  bond, 
fide  comments  on  a  matter  of  public  interest. 

The  above  section  was  passed  because  it  was  considered  that  the 
common  law  pressed  too  severely  upon  newspaper  editors  and  pro- 
prietors, who  in  the  ordinary  course  of  their  business  bad  presented 
to  the  public  a  full,  true,  and  impartial  account  of  what  really  took 
[*267]  place  atapublic  meeting,  considering  no  doubt  that  thereby 
they  were  merely  doing  their  duty,  and  then  found  that  the  law 
deemed  them  guilty  of  libel.  For  a  detailed  examination  of  its 
provisions,  s^i  post,  c.  XIII.  p.  374.  So  far  as  I  am  aware,  there  is 
as  yet  only  one  reported  decision  on  the  section.  It  will  be  observed 
that  the  protection  afforded  by  it  is  limited  to  cases  in  which  the 
publication  of  the  matter  complained  of  was  for  the  public  benefit. 
Most  properly  so  :  for  unless  there  he  some  advantage  to  the  public 
countervailing  the  injury  to  the  individual  libelled,  there  can  he  no 
reason  why  damages  should  not  be  recovered.  The  consequences 
of  reproducing  in  the  papers  calumnies  uttered  at  a  public  meeting 
are  most  serious.  The  original  slander  may  not  be  actionable  per  se, 
or  the  communication  may  be  privileged  ;  so  that  no  action  lies 
against  the  speaker.  Moreover,  the  meeting  may  have  been  thinly 
attended,  or  the  audience  may  have  known  that  the  speaker  was  not 
worthy  of  credit.  But  it  would  be  a  terrible  thing  for  the  person 
defamed  if  such  words  could  be  printed  and  published  to  all  the 
world,  merely  because  they  were  uttered  under  such  circumstances 
at  such  a  meeting.  Charges  recklessly  made  in  the  excitement  of 
the  moment  will  thus  be  diffused  throughout  the  country,  and  will 
remain  recorded  in  a  permanent  form  against  a  perfectly  innocent 
person.  We  cannot  tell  into  whose  hands  a  copy  of  that  newspaper 
may  come.  Moreover,  additional  importance  and  weight  is  given 
to  such  a  calumny  by  its  republication  in  the  columns  of  a  respect- 
able paper.  Many  people  will  believe  it  merely  because  it  is  in  print. 
There  is  in  fact  an  immense  difference  between  the  injury  done  by 
such  a  slander  and  that  caused  by  its  extended  circulation  by  the 
press.  See  the  remarks  of  Loi'd  Campbell  in  Davison  v.  Duncan,  7 
E.  &  B.  231  ;  26  L.  J.  Q.  B.  106  ;  3  Jur.  N.  S.  613  ;  5  W.  R.  253  ; 
28  L.  T.  (Old  S.)  265  ;  and  of  Best,  C.  J.,  in  De  Crespigny 
v.   Wellesley,  5  Bing.  402-406,  cited  ante,  p.   158. 

IU  a  strut  ions. 

The  defendants,  the  printers  and  publishers  of  the  Manchester  Courier,  pub- 
lished in  their  paper  a  report  of  the  proceedings  at  a  meeting  of  the  Board  of 
Guardians  for  the  Altrineham  Poor  Law  Union,  at  which  ex  parte  chargeswere 
made  against  the  medical  officer  of  the  union  workhouse  at  Knutsford,  of 
neglecting  to  attend  the  pauper  patients  when  sent  for.     Held,  that  the  matter 

(273) 


202  QUALIFIED    PEIVILE3E. 

was  one  of  public  interest ;  but  that  the  report  was  not  privileged  by  the  occa- 
sion, although  il  was  admitted  to  be  a  bond  fide  and  a  correct  account  of  what 
passed  at  the  meeting  ;  and  the  plaintiff  recovered  40*.  damages  and  costs. 

Purcell  v.  Bowler  (C.  A.),  2  C.  P.  I).  215;  46  L.  J.  P.  :iu8 ;  25 
W.  R.  362;  36  L.  T.  410. 
[*268]  A  public  meeting  was  called  for  the  purpose  of  petitioning  Parliament 
against  the  grant  to  the  Koman  Catholic  College  at  Maynooth.  The  defendant, 
made  a  telling  speech  at  such  a  meeting,  commenting  severely  on  penances  and 
other  portions  of  the  discipline  of  the  Roman  Catholic  Church,  The  ( lourl  held 
that  the  words  were  not  privileged,  although  the  object  of  the  meeting  was 
legal,  and  the  defendant's  speech  was  pertinent  to  the  occasion. 

Hearne  v.  Stoweli,  12  A.  &  E.  719  ;  4  P.  &D.  696;  6Jur,  458;  ante, 

p.  128. 
See  Pierce  v.  Ellis,  6  Ir.  C.  L.  R.  55. 
Atameeting  of  the  West  Hartlepool  Improvement  Commissioners,  one  of  the 
Commissioners  made  some  defamatory  remarks  as  to  the  conduct  of  the  former 
secretary  of  the  Bishop  of  Durham  in  procuring  from  the  Bishop  a  licence  for 
the  chaplain  of  the  West  Hartlepool  Cemetery.  These  remarks  were  reported 
in  the  local  newspaper,  and  the  secretary  brought  an  action  against  the  owner 
of  the  newspaper  for  libel.  A  plea  of  justification,  alleging  thai  such  r<  marks 
were  in  fact  made  at  a  public  meeting  of  the  commissioners,  and  that  the  alleged 
libel  was  an  impartial  and  accurate  report  of  what  took  place  at  such  meeting, 
was  held  bad  on  demurrer. 

Damson  v.  Duncan,  7  E.  &  B.  229  ;  26  L.  J.  Q.  B.  104  :  3  Jur.  N.  S. 
613  ;  5W.R.  253  ;  28   L.  T.  (Old  S.)  265. 
So,  also,  a  newspaper  proprietor  will  be  held  liable  for  publishing  a  report 
made  to  the  vestrv  by  their  medical  officer  of  health,  even  although  the  vestry 
are  required  by  Act  of  Parliament  sooner  or  later  to  publish  such  report  them- 
selves. 

Popham  v.  Pickburn,  7  H.  &  N.  891  ;  31  L.  J.  Ex.  133  ;  8  Jur.  N.  S. 

179  ;  10  W.  R.  324  ;  5  L.  T.  846 
See  also  Charlton  v.  Walton,  6  C.  &  P.  385.    . 


(27  A) 


[*269]  CHAPTER  IX. 


"In  an  ordinary  action  for  a  libel  or  for  words,  though  evidence 
of  malice  may  be  given  to  increase  the  damages,  it  n<  ver  is  con- 
sidered as  essential,  nor  is  there  any  instance  of  a  verdict  for  the 
defendant  on  the  ground  <>f  a  want  of  malice."  (Per  Bayley,  •'., 
in  Bromage  v.  Prosser,  4  I>.  &  ('.  at  p.  257  ;  6  Dowl.  &  R.  295  ; 
and  per  Mansfield,  C.  J.,  in  Hargrave  \.  /.<  Breton,  I  Buit.  2425.) 
As  we  have  seen,  an  accidental  or  inadvertent  publication  of  defam- 
atory words  is  ground  for  an  action  ;  ante,  )>]>.  -r>,  6,  155.  Even  a 
lunatic  is,  it  is  said,  liable  for  a  libel.  (Per  Kelly,  < '.  B.,  in  Mor- 
daunt  v.  Mordaunt,  39  L.  J.  Prob.  &  Matr.  59.)  The  Courts  for 
this  purpose  look  at  the  tendency  of  the  publication,  not  at  the 
intention  of  the  publisher.  (Haire  v.  Wilson,  9  B.  &  C.  643  ;  4 
Man.  &  Ry.  605  ;  Fisher  v.  Clement,  10  B.  &.  ('.  47l'  ;  5  Man.  & 
Ry.  730.)  *  The  fact  that  the  jury  have  expressly  found  in  defend- 
ant's favour  that  he  had  no  malicious  intent,  shall  not  avail  him 
(per  Maule,  J.,  in  Wenman  v.  Ash,  13  C.  B.  845  ;  22  L.  J.  C.  P. 
190  ;  17  Jur.  579  ;  1  C.  L.  R.  592  ;  Huntley  v.  Ward,  0  C.  B.  N. 
S.  514  ;  6  jur.  N.  S.  18  ;  1  F.  &  F.  552  ;  Blackburn  v.  Blackburn, 
4  Bing.  395  ;  1  M.  &  P.  33,  03  ;  3  C.  &  P.  146)  ;  for  if  he  has  in 
fact  spoken  words  which  have  injured  the  plaintiff's  reputation  he 
must  be  taken  to  have  intended  the  consequences  naturally  result- 
ing therefrom. 

In  former  days  this  rule  was  not  so  strictly  enforced  in  actions 
of  slander  as  of  libel  ;  the  Courts  in  those  days  evincing  a  strong 
desire  [*270]  to  discourage  all  actions  of  slander,  except,  perhaps, 
in  cases  where  the  words  imputed  a  capital  offence.  Thus,  where 
the  defendant  was  sued  for  saying  that  he  had  heard  that  the  plain- 
tiff had  been  hanged  for  stealing  a  horse,  and  on  the  evidence  it 
appeared  that  defendant  spoke  the  words  in  genuine  grief  and  sor- 
row at  the  news,  Ilobart,  J.,  nonsuited  the  plaintiff,  on  the  express 
ground  that  the  words  were  not  spoken  maliciously.  (Crawford 
v.  Middleton,  1  Lev.  82.  And  see  Green/rood  v.  Brick,  cited  Cro. 
Jac.  91  ;  ante,  p.  5.)  Now,  however,  the  absence  of  malice  could 
only  be  given  in  evidence  in  mitigation  of  damages  ;  and  the  ques- 
tion whether  the  defendant  acted  maliciously  or  not,  should  never 
be  left  to  the  jury,  unless  the  occasion  be  privileged.  (Hdirt  v. 
Wilson,  9  B.  &  C.  643  ;  4  Man.  &  Ry.  605.  Per  Lord  Denman  in 
Baylis  v.  Lawrence,  11  A.  &  E.  024';  3  P.  &  D.  529  ;  4  Jur.  652. 
Per  Parke,  B.,  in  O'Brien  v.  Clement,  15  M.  &  W.  437.)  The 
defendant's  intention  or  motive  in  using  the  words  is  immaterial, 
if  he  has  in  fact  wrongfully  injured  the  plaintiff's  reputation. 
(Hooper  v.  Truscott,  2  Scott,  *672  ;  2  Bing.  N.  C.  457  ;  Godson  v. 
Home,  1  Br.  &  B.  7  ;  3  Moore,  223.) 

(275) 


204  MALICE. 

It  is  true  that  the  word  "malicious"  is  usually  inserted  in  every 
definition  of  libel  or  slander,  that  the  pleader  invariably  introduces 
it  into  every  statement  of  claim,  and  that  the  older  eases  contain 
many  dicta  to  the  effect  that  "malice  is  the  gist ,  "  of  an  action  of 
libel  or  slander.  But  in  all  these  cases  the  word  "malice"  is  used 
in  a  special  and  technical  sense  ;  it  denotes  merely  the  absence  of 
lawful  excuse  /  in  fact,  to  say  that  defamatory  words  are  malicious 
in  that  sense  means  simply  that  they  are  unprivileged,  not  em- 
ployed under  circumstances  which  excuse  them.  But  i  have 
thought  it  best  to  drop  this  technical  and  fictitious  use  of  the  word 
altogether — a  use  which  has  been  termed  "  unfortunate  "  by  more 
than  one  learned  judge.  (Per  Lord  Bramwell,  11  App.  Cas.  253  ; 
55  L.  J.  Q.  B.  460  ;  55  L.  T.  65  ;  per  Stephen,  J.,-41  L.  T.  590.) 
In  this  book  the  word  "malice"  is  always  used  in  the  popular  and 
ordinary  sense  of  the  word  ;  i.e.,  to  denote  some  ill-feeling  towards 
the  plaintiff  or  the  public  ;  some  mean  or  crooked  motive  of  which 
an  honourable  man  would  be  ashamed.  This  is  called  "  express 
malice"  or  "  actual  malice "  in  our  older  books.  Using  the  word 
in  this  sense,  I  say  that  till  the  defendant  pleads  privilege,  malice 
is  no  part  of  the  issue.  As  soon  as  the  judge  rules  that  the  occa- 
sion  is  privileged,  the  plaintiff  has  to  prove  malice,  but  not  before. 

In  the  words  of  Lord  Justice  Brett  :  "  When  there  has  been  a 
writing  or  a  speaking  of  defamatory  matter,  and  the  judge  has 
held —  and  it  is  for  him  to  decide  the  question — that  although  the 
matter  is  [*  271]  defamatory  the  occasion  on  which  it  is  either 
written  or  spoken  is  privileged,  it  is  necessary  to  consider  how, 
although  the  occasion  is  privileged,  yet  the  defendant  is  not  per- 
mitted to  take  advantage  of  the  privilege.  If  the  occasion  is  privi- 
leged it  is  so  for  some  reason,  and  the  defendant  is  only  entitled  to 
the  protection  of  the  privilege  if  he  uses  the  occasion  for  that 
reason.  He  is  not  entitled  to  the  protection  if  he  uses  the  occasion 
for  some  indirect  and  wrong  motive.  If  he  uses  the  occasion  to 
gratify  his  anger  or  his  malice,  he  uses  the  occasion  not  for  the 
reason  which  makes  the  occasion  privileged,  but  for  an  indirect  and 
wrong  motive.  If  the  direct  and  wrong  motive  suggested  to  take 
the  defamatory  matter  out  of  the  privilege  is  malice,  then  there 
are  certain  tests  of  malice.  Malice  does  not  mean  malice  in  law,  a 
term  in  pleading,  but  actual  malice,  that  which  is  popularly  called 
malice.  If  a  man  is  proved  to  have  stated  that  which  he  knew  to 
be  false,  no  one  need  inquire  further.  Everybody  assumes  thence- 
forth that  he  was  malicious,  that  he  did  do  a  wrong  thing  for  some 
wrong  motive.  So  if  it  be  proved  that  out  of  anger,  or  for  some 
other  wrong  motive,  the  defendant  has  stated  as  true  that  which  he 
does  not  know  to  be  true,  and  he  has  stated  it  whether  it  is  true  or 
not,  recklessly,  by  reason  of  his  anger  or  other  motive,  the  jury  nmy 
infer  that  he  used  the  occasion,  not  for  the  reason  which  justifies  it, 
but  for  the  gratification  of  his  anger  or  other  indirect  motive.  The 
judgment  of  Bayley,  J.,  in  Bromage  v.  Prosser,  4  B.  &  C,  atp.  255, 
treats  of  malice  in  law  :  and  no  doubt  where  the  word  'maliciously' 
is  used  is  used  in  a  pleading,  it  means  intentionally,  wilfully.  It  has 
been  decided  that  if  the  word  '  maliciously  '  is  omitted  in  a  declar- 

(276) 


MALICE    IN    LAW.  205 

ation  for  libel,  and  the  words  '  wrongfully  '  or  '  falsely  '  substituted, 
it  is  sufficient,  the  reason  being  that  the  word  '  maliciously,9  as  use. I  in 
a  pleading,  has  only  a  technical  meaning  ;  but  here  we  arc  dealing 
with. malice  in  fact,  and  malice  then  means  a  wrong  feeling  in  a 
man's  mind."  {('lark  v.  Motyneux,  3  Q.  B.  D.  246,  247  ;  47  L. 
J.  Q.  B.  230  ;  26  W.  R.  L04  ;  37  L.  T.  696,  697.) 

Malice  may  he  defined  as  any  indirect  and  dishonest  motive 
which  induces  the  defendant  to  defame  the  plaintiff.  "Malice 
means  any  corrupt  motive,  any  wrong  motive,  or  any  departure 
from  duty."  (Per  Erie,  C.  J.,  2  F.&  F.  524.)  If*  malice  be 
proved,  the  privilege  attaching  to  the  occasion,  unless  il  be  absolute, 
is  lost  at  once. 

The  onus  of  proving 'malice  lies  on  the  plaintiff;  the  [*  272] 
defendant  cannot  be  called  on  to  prove  he  did  not  act  maliciously, 
till  some  evidence  of  malice,  more  than  a  mere  scintilla,  has  been 
adduced  by  the  plaintiff.  {Taylor  v.  Hawkins,  in  Q.  B.  321  ;  15 
Jur.  746  ;  20  L.  J.  Q.  B.  313  ;  Cooke  and  another  v.  Wildes,  5  E. 
&  B.  340  ;  24  L.  J.  Q.  B.  367  ;  1  Jur.  K  S.  610  ;  3  C.  L.  R.  1090  ; 
LauglUon  v.  Bishop  of  Sodor  &  Man,  L.  R.  4  P.O.  495  ;  42  L.  J.  P. 
C.  11  ;  21  W.  R.  204';  28  L.  T.  377  ;  9  Moore,  P.  0.  ('.  X.  S.  318  ; 
Clark  v.  Molyneux,  (C.  A.),  3  Q.  B.  D.  237  ;  47  L.  J.  Q.  B.  230  ; 
26  W.  R.  104  ;  37  L.  T.  694  ;  14  Cox,  C.  C.  10.)  Such  evidence 
may  either  be  extrinsic — as  of  previous  ill-feeling  or  personal  hos- 
tility between  plaintiff  and  defendant,  threats,  rivalry,  squabbles, 
other  actions,  former  libels  or  slanders,  etc.  ;  or  intrinsic — the 
violence  of  defendant's  language,  the  mode  and  extent  of  its  pub- 
lication, &c.  But  in  either  case,  if  the  evidence  adduced  is 
equally  consistent  with  either  the  existence  or  non-existence  of 
malice,  the  judge  should  stop  the  case  ;  for  there  is  nothing  to 
rebut  the  presumption  which  has  arisen  in  favour*  of  the  defendant 
from  the  privileged  occasion.  (Sornerv'lle  v.  Hawkins,  10  C.  B. 
590  ;  20  L.  J.  C.  P.  131  ;  15  Jur.  450  ;  Harris  v.  Thompson,  13  C. 
B.  333  ;  Taylor  v.  Hawkins  16  Q.  B.  308  ;  20  L.  J.  Q.  B.  313  ;  15 
Jur.  746.)  That  the  words  are  strong  is  no  evidence  of  malice,  if 
on  defendant's  view  of  the  facts  strong  words  were  justified.  [JSpiU 
v.  Maule,  L.  R.  4  Ex.  232  ;  38  L.  J.  Ex.  138  ;  17  W,  R.  805  ;  20 
L.  T.  675.)  That  the  statement  was  volunteered  is  no  evidence  of 
malice,  if  it  was  defendant's  duty  to  volunteer  it.  [Gardner  v. 
Sladeetiix,  13  Q.  B.  798  ;  18  L.  f.  Q.  B.  336.)  That  the  statement 
is  now  admitted  or  proved  to  be  untrue  is  no  evidence  that  it  was 
made  maliciously  (Cavlfield  v.  Whitworth,  16  W.  R.  936  ;  18 
L.  T.  527)  ;  though  proof  that  defendant  knew  it  was  untrue  when 
he  made  it  would  be  conclusive  evidence  of  malice.  If  the  defend- 
ant is  in  a  position  to  prove  the  truth  of  his  statement,  "he  has  no 
need  of  privilege  :  the  only  use  of  privilege  is  in  cases  where  the 
truth  of  the  statement  cannot  be  proved."  (Per  Lord  Coleridge,  C. 
J.,  [*  273]  in  Howe  v.  Jones,  1  Times  L.  R.  at  p.  462.  This~is  so 
also  in  America  ;  see  Lewis  and  Herrick  v.  Chapman  (Selden,  J.), 
2  Smith  (16  K  Y.  R.)  369;  Vanderzee  v.  McGregor,  12  Wend. 
546  ;  Ibtcles  v.  Bowen,  3  Tiffany  (30  N.  Y.  R.)  20.) 

(277) 


206  MAl.ICK. 

A  mere  mistake  innocently  made  through  excusable  inadvertence 
cannot  in  any  case  be  evidence  of  malice.  [Harrison  v.  Bush,  5  E. 
&  B.  350;  1  Jur.  N.  S.  846;  25  L.  J.  Q.  B.  25  ;  Brett  v.  Watson,  20 
W.  R.  723  ;  Kershaw  v.  Bailey,  1  Ex.  74:3;  17  L.  J.  Ex.  129;  Scarll 
v.  Dixon,  4  F.  &  F.  250;  Pater  v.  Baker,  3  C.  B.  831;  10  L.  J.  C. 
P.  124;  11  Jur.  370;  Tompsonv.  Dashwood,  11  Q.  B.  D.  43;  52  L.  J. 
Q.  B.  425;  48  L.   T.  943;  48  J.  P.  55.) 

The  question  of  malice  or  no  malice  is  for  the  jury.  But  there  is 
always  the  prior  question:  "  Is  there  any  evidence  of  malice  to  goto 
the  jury  ?  "  and  this  is  for  the  judge.  The  presumption  in  favour  of 
the  defendant  arising  from  the  privileged  occasion  remains  till  it  is 
rebutted  by  evidence  of  malice  ;  and  evidence  merely  equivocal,  that 
is,  equally  consistent  with  malice  or  bond  fides,  will  do  nothing 
towards  rebutting  the  presumption;  if  therefore,  only  such  evidence 
be  offered,  the  judge  should  nonsuit  the  plaintiff.  So,  too,  the  judge 
should  stop  the  case  if  there  be  no  more  than  a  scintilla  of  evidence 
of  malice  to  go  the  jury.  But  it  is  difficult  to  say  beforehand  what 
will  be  deemed  a  mere  scintilla,  what  more  than  a  scintilla,  in  any 
given  case.  The  same  evidence  may  make  different  impressions  on 
different  minds  (See  Adams  v.  Coleridge,  1  Times  L.  R.  87). 

The  facts  tendered  as  evidence  of  malice  must  always  go  to  prove 
that  the  defendant  himself  was  actuated  by  personal  malice  against 
the  plaintiff.  In  an  action  against  the  publisher  of  a  magazine, 
evidence  that  the  editor  or  the  author  of  any  article,  not  being  the 
publisher,  had  a  spite  against  the  plaintiff,  is  of  course  inadmissible. 
{Robertson  v.  Wylde,  2  Moo.  &  Rob.  101;  Clark  v.  JSTewsam,  1  Ex. 
131,  139;  Cdrmichael  v.  Waterford  and  Limerick  Ry.  Co.,  13  Ir. 
L.  R.  313.     So  in  America,    York  v.  Pease,  2  Gray  (68  Mass.)  282.) 

Illustrations. 

Defendant  claimed  a  leasehold  interest  iu  the  manor  and  castle  of  Hely,  and 
produced  a  lease  which  she  knew  to  be  a  forgery.    Judgment  for  the  plaintiff. 

Gerard  v.  Dickenson  (1590),  4  Rep.  18  ;  Cro.  Eliz.  197. 
Defendant  wrote  to  his  wife's  uncle  telling  him  that  his  son  and  heir  was 
leading  a  fast  wild  life,  and  was  longing  for  his  father's  death,  and  that  all  his 
[274*]  inheritance  would  not  he  sufficient  to  satisfy  his  debts.  The  Court  of 
Star  Chamber  were  satisfied  that  this  letter  was  written  with  the  intuition  of 
alienating  the  father  from  the  son,  and  inducing  the  father  to  leave  his  lands 
and  money  to  the  defendant  or  his  wife,  and  not  from  an  honest  desire  that  the 
son  should  reform  his  life  ;  and  they  fined  defendant  £200. 

Peacock,  v.  Eeynal  (1612),  2  Brownlow  and  Goldesborough,  151. 
Plaintiff  assaulted  the  defendant  on  the  highway;  the  defendant  met  a  con- 
stable and  asked  him  to  arrest  the  plaintiff.  The  constable  refused  to  arrest  the 
plaintiff  unless  he  was  charged  with  a  felony.  The  defendant  knowing  full 
well  that  the  plaintiff  had  committed  a  misdemeanour  only,  viz.,  the  assault, 
charged  him  with  felony,  in  order  to  get  him  locked  up  for  the  night.  Held, 
i  hat  the  charge  of  felony  was  malicious,  as  being  made  from  an  indirect  and 
improper  motive. 

Smith  v.  Hodgeskins  (1633),  Cro.  Car.  276. 
A  near  relative  may  warn  a  lady  not  to  marry  a  particular  suitor,  and  assign 
his  reasons  for  thus  cautioning  1  e  \  provided  this  be  done  from  a  conscientious 
desire  for  her  welfare,  and  in"  the  bond  fide  belief  that  the  charges  made  are 
true. 

Todd  v.  Hawkins,  2  M.  &  Rob.  20  ;  8  C.  &  P.  888. 

(278) 


MALICE    IN    LAW.  207 

Per  De  Grey,  C.  J.,  in  case  cited  2  Smith,  at  p.  4. 
As  to  a  mere  friend. 

See  Byam  v.  Collins,  39  Hun.  (46  N.  V.  Sun.  Ct.)  204  ;  and  per  Hill. 
J.,  in  ease  referred  to  in  L5  C  15.  N.  S.  410,  411  ;  83   L.  .J.  C  P. 
93  ;  ante,  p.  21!). 
But  if  a  rival  thus  endeavoured  to  oust  the  plaintiff  from  the  lady's  affections, 
there  would  be  evidence  of  malice  to  goto  the  jury- 

And  see  Adams  v.  Coleridge,  1  'I  imes  L.  R.  84. 
It  is  usual  for  a  former  master  to  give  the  character  of  a  servant  on  appli- 
cation, and  not  before.  Hence  if  a  master  hears  a  discharged  servant  is  apply- 
ing for  a  place  at  M.'s  house,  and  writes  at  once  to  M.  to  'jive  the  servant  a  bad 
character,  the  fact  that  the  communication  was  uncalled  for  will  be  apt  to  tell 
against  the  master.  M-  would  almost  certainly  have'  applied  to  the  defendant 
for  the  information  sooner  or  later  ;  and  the  eagerness  displayed  in  thus  impart- 
ing it  unasked  will  be  commented  on  as  a  proof  of  malice,  and  if  there  be  any 
other  evidence  of  malice,  however  slight,  may  materially  influence  the  verdict. 
But  if  there  be  no  other  evidence  of  malice,  the  communication  is  still  privi- 
leged. 

Pattison  v.  Jones,  8  B.  &  C.  578;  3  M.   &  R.  101. 

Fowles  v.  Bowen,  3  Tiffany  (30  X.  Y.  R.)  20  ;  ante,  p.  203. 
The  defendant  on  being  applied  to'  for  the  character  of  the  plaintiff,  who  had 
been  his  saleswoman,  charged  her  with  theft.  *  He  had  never  made  such  a 
charge  against  her  till  then  ;  he  told  her  that  he  would  say  nothing  about  it,  if 
she  resumed  her  employment  at  his  house  ;  subsequently  he  said  that  if  she 
would  acknowledge  the  theft  he  would  give  her  a  character.  Held,  that  there 
was  abundant  evidence  that  the  charge  of  theft  was  made  mold  fide,  with  the 
intention  of  compelling  plaintiff  to  return  to  defendant's  service  Damages, 
£60- 

Jackson  v.  Happerton,  16  C  B.  N.  S-  829  ;  12  W-  R.  913  ;  10  L.  T. 
529. 

Rogers  v.  Clifton,  3  B.  &  P.  587- 
[*  27.1]  The  defendant  made  a  charge  of  felony  against  his  former  shopman 
to  his  relatives  during  his  absence  in  London,  with  a  view  of  inducing  them  to 
compound  the  alleged  felony,  and  not  for  the  purpose  of  prosecution  or  inves- 
tigation. He  actually  received  £50  from  plaintiff's  brother  as  hush-money. 
Held,  that  the  charge  of  felony  was  altogether  unprivileged. 

Hooper  v.  Truscott,  2  Bing.  N.  C.  457  ;  2  Scott,  672. 
A  colonel  was  dismissed  from  his  command  in  consequence  of  charges  made 
by  the  defendant.  A  member  of  Parliament  gave  notice  that  he  would  ask  a 
question  in  the  House  of  Commons  relative  to  this  dismissal.  Defendant 
thereupon  called  on  the  member,  whom  he  knew,  to  explain  matters.  The 
conversation  that  ensued  was  held  to  be  primd  facie  privileged  ;  but  on  proof 
that  the  Charges  were  made,  not  from  a  sense  of  duty,  but  from  personal  resent- 
ment on  account  of  other  matters,  and  that  the  object  of  the  conversation  was 
to  prejudice  the  plaintiff  by  reason  of  such  personal  resentment — held,  that 
there  was  actual  malice,  taking  away  the  privilege. 

Dickson  v.  The  Earl  of  Wilton,  1  F.  &  F.  419. 
A  speech  made  by  a  member  of  Parliament  in  the  House  is  absolutely  privi- 
leged ;  but  if  he  subsequently  causes  his  speech  to  be  printed  and  published, 
with  the  malicious  intention  of   injuring  the  plaintiff,  he  will  be  liable  both 
civilly  and  criminally. 

R.  v.  Lord  Abingdon,  1  Esp.  226. 

R.  v.  Creerey,  1  M.  &.  S.  273. 
The  rector  dismissed  the  parish  schoolmaster  for  refusing  to  teach  in  the 
Sunday  School.  The  schoolmaster  opened  another  school  on  his  own  account 
in  the  parish.  The  rector  published  a  pastoral  letter  warning  all  parishioners 
not  to  support  "a  schismatical  school,"  and  not  to  be  partakers  with  the 
plaintiff  "in  his  evil  deeds,"  which  tended  "to  produce  disunion  and  schism," 
and  "  a  spirit  of  opposition  to  authority."  Held,  that  there  was  some  evidence 
to  go  to  the  jury  that  the  rector  cherished  anger  and  malice  against  the  school- 
master. 

Gilpin  v.  Foicler,  9  Ex.  615  ;  23  L.  J.  Ex.  152  ;  18  Jur.  293. 
(279) 


208  MALICE. 

I.  Extrinsic  evidence  of  malice. 

Malice  may  be  proved  by  extrinsic  evidence  showing  that  the 
defendant  bore  a  long-standing  grudge  against  the  plaintiff,  that 
there  were  former  disputes  between  them,  that  defendant  had  for- 
merly been  in  the  plaintiff's  employ  and  was  dismissed  for  mis- 
conduct, or  any  previous  quarrels,  rivalry,  or  ill-feeling  between 
plaintiff  and  defendant.  Anything  defendant  has  ever  said  or  done 
with  reference  to  the  plaintiff  may  be  urged  as  evidence  of  malice. 
Indeed,  it  is  very  difficult  to  say  what  possible  evidence  is  inad- 
[*  276 J  missible  on  this  issue.  The  plaintiff  has  to  show  what  was 
in  the  defendant's  mind  at  the  time  of  publication,  and  of  that  no 
doubt  the  defendant's  acts  and  words  on  that  occasion  are  the  best 
evidence.  But  if  plaintiff  can  prove  that  at  any  other  time,  before 
or  after,  defendant  had  any  ill-feeling  against  him,  that  is  some 
evidence  that  the  ill-feeling  existed  also  at  the  date  of  publication  ; 
therefore,  all  defendant's  acts  and  deeds  that  point  to  the  existence 
of  any  such  ill-feeling  at  any  date,  are  evidence  admissible  for 
what  'they  are  worth.  (Cooper  v.  Blackmore  and  others,  2  Times 
L.  R.  746.)  In  fact,  whenever  the  state  of  a  person's  mind  on  a 
particular  occasion  is  in  issue,  everything  that  can  throw  any  light 
on  the  state  of  his  mind  then  is  admissible,  although  it  happened  on 
some  other  occasion.  (See  JR.  v.  Francis,  L.  R.  2  C.  C.  R.  128  ; 
and  Blake  v.  Albion  Assurance  Society,  4  C.  P.  D.  04  ;  48  L.  J.  C. 
R  109  ;  27  W.  R.  321  ;  40  T.  211.) 

Thus  any  other  words  written  or  spoken  by  the  defendant  of  the 
plaintiff,  either  before  or  after  those  sued  'on,  or  even  after  the 
commencement  of  the  action,  are  admissible  to  show  the  animus  of 
the  defendant  ;  and  for  this  purpose  it  makes  no  difference  whether 
the" words  tendered  in  evidence  be  themselves  actionable  or  not,  or 
whether  they  be  addressed  to  the  same  party  as  the  words  sued  on 
or  to  some  one  else.  {Pearson  v.  Lemaitre,  5  M.  &  Gr.  700  ;  12  L. 
J.  Q.  B.  253  ;  7  Jur.  748  ;  6  Scott,  N.  R.  607  ;  Mead  v.  Daubigny, 
Peakc,  168.)  Such  other  words  need  not  be  connected  with  or 
refer  to  the  libel  or  slander  sued  on  ;  provided  they  in  any  way 
tend  to  show  malice  in  defendant's  mind  at  the  time  of  publication. 
(Barrett  v.  Long,  3  H.  L.  C.  395  ;  7  Ir.  L.  R.  439  ;  8  Ir.  L.  R.  331; 
Bolton  v.  O'Brien,  16  L.  R.  Ir.  97,  483.)  And  not  only  are  such 
other  words  admissible  in  evidence,  but  also  all  circumstances 
attending  their  publication,  the  mode  and  extent  of  their  repe- 
tition, &c.  ;  the  more  the  evidence  approaches  proof  of  a  sys- 
tematic practice  of  libelling  or  slandering  the  plaintiff,  the  more 
convincing  it  will  be.  ( Hond  v.  Douglas,  7  C.  &.  P.  626  ; 
[*277]  Barret  v.  Long,  3  H.  L.  C.  p.  414.)  The  jury  no  doubt  should 
be  told,  whenever  the  other  words  so  tendered  in  evidence  are  in 
themselves  actionable,  that  they*must  not  give  damages  in  respect  of 
such  other  words,  because  they*  might  be  the  subject-matter  of  a  sep- 
arate action  (Pearson  v.  Lemaitre,  supra  ;)  but  the  omission  by  the 
judge  to  give  such  a  caution  will  not  amount  to  a  misdirection.  Darby 
v.  Ouseley,  lH.&N.l;  25  L.  J.  Ex.  227  ;  2  Jur.  N.  S.  497.^  But  the 
defendant  is  always  at  liberty  to  prove  the  truth  of  such  other  words  so 

(280) 


EXTRINSIC    EVIDENCE    OF    MALICE.  209 

given  in  evidence  ;  for  he  could  notpleada,  justification  as  to  them,  as 
they  were  no  set  out  on  the  record.  {Stuart  v.  Lovell,  2  Stark  93  ; 
Warne  v.  Chadicell,  2  Stark.  457.) 

It  must  be  remembered  that  this  evidence  of  former  or  subsequent 
defamation  is  only  admissible  to  determine  quo  animo  the  words  sued 
on  were  published  ;  that  is,  they  are  only  admissible  when  malice  in 
fact  is  in  issue.  If  there  is  no  question  of  malice,  no  such  oilier 
libels  would  be  admissible,  unless  they  had  immediate  reference  to 
the  libel  sued  on,  or  helped  to  explain  or  modify  it,  (Ante,  p.  98  ; 
Mnnerty  v.  Tipper,  2  Camp.  72  ;  Stuart  v.  Lovell,  2  Stark  93  ; 
Defries  v.  Davis,  7  C.  &  P.  1 12.)  For  such  other  libels  are  clearly 
independent  substantive  causes  of  action,  and  should  not  be  used  un- 
fairly to  enhance  the  damages  in  this  action.  It  has  sometimes  been 
held  that  even  when  malice  is  in  issue  other  words  could  not  be 
given  in  evidence  if  they  themselves  were  actionable.  (Pearce  v. 
Ornsby,  1  M.  &  Rob.  455  ;  St/mmons  v.  Blake,  ib.  477  ;  but  these 
cases  are  expressly  overruled,  or  explained  away,  by  Tindal,  C.  J.,  in 
5  M.  &  Gr.  719,  720.  And  see  the  remarks  of  Lord  Ellenborough  in 
Rustell  v.  Macquister,  1  Camp.  49,  n.  ;  and  of  Jervis,  C.  J.,  in  Cam- 
field  v.  Bird,  3  C.  &  Kir.  56.)  And  it  is  now  clear  law  that  when- 
ever the  intention  of  the  defendant  is  equivocal,  that  is,  when- 
ever the  question  of  malice  or  bond  fides  is  properly  about  to  be  left 
to  the  jury,  evidence  of  any  previous  or  subsequent  libel  is  admissi- 
ble, even  though  it  be  more  than  six  years  prior  to  the  libel  sued  on  ; 
and  even  though  a  former  action  has  been  brought  for  the  libel  now 
tendered  in  evidence  and  damages  recovered  therefor.  (Sum- 
mons v.  Blake,  1  M.  &  Rob.  477  ;  Jackson  v.  Adams,  2  Scott,  599. 
See  also  Charlter  v.  Barrett,  Peake,  32  ;  Zee  v.  JTuson,Veake,  223. 
The  law  is  the  same  in  America  :  Fowles  v.  Bowen,  3  Tiffany  (30 
K  Y.  R. )  20.) 

[*278]  So  if  the  defendant  reasserts  the  libel  in  numbers  of  his 
periodical  appearing  after  commencement  of  the  action  (  Ch%d>b  v. 
Westlei/,  6  C.  &  P.  436)  ;  or  in  private  letters  written  after  action 
(Pearson  v.  Lemaitre,  5  M.  &  Gr.  700)  ;  (unless  such  letters  be  them- 
selves privileged,  as  in  Whiteley  v.  Adams,  15  C.  B.  N.  S.  392  ;  33 
L.  J.  C.  P.  89  ;  10  Jur.  K  S.  470  ;  12  W.  R.  153  ;  9  L.  T.  483)  ;  or 
if  the  defendant  continues  to  sell  copies  of  the  libel  at  his  shop  up  to 
two  days  before  the  trial  (Plunhet  v.  Cobbet,  5  Esp.  136  ;  Barvell  v. 
Adkins,  2  Scott,  N.  R.  ll\  1  M.  &  Gr.  807  );  these  facts  are  admis- 
sible as  evidence  of  deliberate  malice,  though  no  damages  can  be 
given  in  respect  of  them.  A  plea  of  justification  may  be  such  a  reas- 
sertion  of  the  libel  or  slander.  No  doubt  where  the  words  are  privi- 
leged, the  mere  fact  that  a  plea  of  justification  was  put  on_  the 
record  is  not  of  itself  evidence  of  malice  sufficient  to  go  to  the  jury. 
(  Wilson  v.  Robinson,  7  Q.  B.  68  ;  Caulfield  v.  Wliitworth,  16  W.  R. 
936  ;  18  L.  T.  527  ;  Brooke  v.  Avrillon,  \2  L.  J.  C.  P.  126.)  But 
if  there  be  other  circumstances  suggesting  malice,  the  plaintiff's 
counsel  may  also  comment  on  the  justification  pleaded  ;  and,  indeed,  in 
special  circumstances,  as  where  the  defendant  at  the  trial  will  neither 
abandon  the  plea,  nor  give  any  evidence  in  support  of  it,  thus  ob- 
14  lib.  &  slan.  (281) 


210  MALICE. 

etinately  persisting  in  the  charge  to  the  very  last  without  any  suffi- 
cient reason,  this  alone  may  be  sufficient  evidence  of  malice.  (  War- 
wick v.Fovlkes,  L2  M.  &  W.  508  ;  Simpson  v.  Robinson,  12  Q.  B. 
511  ;  18  L.  J.  Q.  B.73.) 

The  mere  fact  that  the  words  are  now  proved  or  admitted  to  be 
false  is  no  evidence  of  malice,  unless  evidence  be  also  given  by  the 
plaintiff  to  show  that  the  defendant  knew  they  were  false  at  the  time 
of  publication.  {Fountain  v.  Boodle,  3Q.  B.  5  ;  Caulfield  v .  Whit- 
worth,  10  W.  R.  9.36  ;  18  L.  T.  527  ;  Clark  v.  Molyneux  (C.  A.),  3 
Q.  B.  D.  237  ;  47  L.  J.  Q.  B.  230  ;  26  W.  R.  104  ;  37  L.  T.  694  ; 
14  Cox,  C.  C.  10.)  Day,  J.,  must  be  mis-reported  in  Palmer  v. 
Hummersion,  1  Cababe  &  Ellis,  36.  The  dictum  of  Lord  Denman, 
C.  J.,  in  Blagg  v.  Sturt,  10  Q.  B.  905  ;  16  L.  J.  Q.  B.  42,  is  [*279]  ex- 
pressly overruled  or  explained  away  by  Williams,  J.,  in  Harris  v. 
Thompson,  13  C.  B.  at  p.  352. 

Illustrations. 

Where  a  master  has  given  a  servant  a  bad  character,  the  circumstances  under 
which  they  parted,  any  expressions  of  ill-will  uttered  by  the  muster  then  or  sub- 
sequently," the  fact  that  the  master  never  complained  of  the  plaintiff's  misconduct 
whilst  she  was  in  his  service,  or  when  dismissing  her  would  not  specify  the 
reason  for  her  dismissal,  and  give  her  an  opportunity  of  defending  herself, 
together  with  the  circumstances  under  which  the  character  was  given,  and  its 
exaggerated  language,  are  each  and  all  evidence  of  malice. 

Kelly  v.  Partington,  4B.&  Adol.  700  ;  2  N.  &  M.  460. 
Jackson  v.  Hopperton,  16  C.  B.  N.  S.  829  ;  12  W.  II.  913  ;  10  L.  T. 
529  ;  ante,  p.  203. 
And  in  such  a  ease  plaintiff  is  permitted  to  give  general  evidence  of  his  or  her 
good  character,  in  order  to  show  that  the  defendant  must  have  known  she  did 
not  deserve  the  bad  character  he  was  writing. 

Fountain  v.  Boodle,  3  Q.  B.  5  ;  2  G.  &  D.  455. 
Rogers  v.  Sir  Gervas  Clifton,  3  B  &  P.  587  ;  ante,  p.  203. 
There  had  been  a  dispute  between  plaintiff  and  defendant  prior  to  the  slander 
about  a  sum  of  £20  which  the  plaintiff  claimed  from  the  defendant.  At  the 
trial,  also,  the  plaintiff  offered  to  accept  an  apology  and  a  verdict  for  nominal 
damages  if  defendant  would  withdraw  his  plea  of  justification.  The  defendant 
refused  to  withdraw  the  plea,  yet  did  not  attempt  to  prove  it.  Held,  ample 
evidence  of  malice.     Damages  £40. 

Simpson  v.  Robinson,  12  Q.  B.  511  ;  18  L.  J.  Q.  B.  73  ;  13  Jur.  187. 
Plaintiff  brought  an  action  against  defendant,  and  applied  for  an  injunction. 
Defendant  applied  at  the  same  time  for  a  receiver,  which  was  refused.     There- 
upon the  defendant  said  that  he  would  "  make  it  d d  hot  for  Dodson,"  and 

inserted  in  a  newspaper  he  owned  a  report  of  the  application,  setting  out  all  his 
own  counsel  had  said  against  plaintiff's  solvency,  Sec.,  at  full  length,  but  omit- 
ting all  mention  of  plaintiff's  affidavit.  Held,  ample  evidence  of  malice. 
Damages  £2.10. 

Dodson  v.  Owen,  2  Times  L.  R.  111. 
Even  though  a  report  of  judicial  proceedings  be  correct  and  accurate,  still  if 
it  be  published  from  a  malicious  motive,  whether  by  a  newspaper  reporter  or 
any  one  else,  the  privilege  is  lost. 

Stevens  v.  Sampson,  5  Ex.  D.  53  ;  49  L.  J.  Q.  B.  120  ;  28  W.  R.  87 ; 
41  L.  T.  782. 
Plaintiff  was  town-clerk  and  clerk  to  the  borough  justices.  Defendant  said 
that  he  should  feel  great  pleasure  in  ridding  the  borough  of  men  like  the  plain- 
tiff. So  he  sent  a  petition,  charging  plaintiff  with  corruption  in  his  office  and 
praying  for  an  inquiry,  to  an  official  who  had  no  jurisdiction  over  the  matter. 
Verdict  for  the  plaintiff.     Damages  £100. 

Blagg  v.  Sturt,  10  Q.  B.  899  ;  16  L.  J.  Q.  B.  39  ;  11  Jur.  101  ;  8  L.  T. 
(Old  S.)  135. 

(282) 


EXTRINSIC    EVIDENCE    OF    MALICE.  211 

It  is  some  evidence  of  malice  that  plaintiff  and  defendant  are  rivals  in  trade, 
[*280]  or  that  tht'y  competed  together  for  some  post,  and  plaintiff  succeeded,  and 
that  then  defendant,  being  disappointed,  wrote  the  libel. 
Warman  v.  I  line,  1  Jur.  820. 
Smith  v.  Mathews,  1  Moo.  &  Rob.  151. 
The  defendant  wrote  a  letter  to  be  published  in  the  newspaper.     The  careful 
editor  si  ruck  out  all  the  more  outrageous  passages,  and  published  the  remainder. 
The  defendant's  manuscript  was  admitted  in  evidence,  and  the  obliterated  pas 
sages  read  to  the  jury,  to  show  the  animus  of  the  defendant. 

Tarpley  v.  Blaby,  2  Scott,  642;  2  Bing.  N.  C.  437;  1  Hodges,  414  : 
7  C.  &  P.  395. 
A  long  practice  by  the  defendant  of  libelling  the  plaintiff  is  cogent  evidence 
of  malice  ;  therefore  other  libels  of  various  dates,  some  more  than  six  years  old, 
some  published  shortly  before  that  sued  on,  are  all  admissible  to  show  thai  the 
publication  of  the  culminating  libel  sued  on  was  malicious  and  not  inadvertent 
Barrett  v.  Long,  3  H.  L.  C.  895 ;  7  Ir.  L.  R.  439 ;  8  Ir.  L.  R.  331. 
A  libel  having  appeared  in  a  newspaper,  subsequent  articles  in  later  numbers 
of  the  same  newspaper,  alluding  to  the  action  and  affirming  the  truth  of  the 
prior  libel,  are  admissible  as  evidence  of  malice. 
Chubb  v.  Westley,  6  C.  &  P.  436. 
Barwell  v.  Adkins,  1  M.'&  Gr.  807  ;  2  Sc.  N.  R.  11. 
Mead  v.  DauMgny,  Peake,  168. 
So,  if  there  be  subsequent  insertions  of  substantially  the  same  libel  in  other 
newspapers. 

DelegcU  v.  Highley,  8  C.  &  P.  444  :  5  Scott,  154 ;  3  Bing.  N.  C.  950  ; 
3  Hodges,  158. 
So,  if  the  defendant  persists  in  repeating  the  slander  or  disseminating  the 
libel  pending  action.  In  Pearson  v.  Lemaitre,  5  M.  &  Gr.  700  ;  6  Scott,  N.  R. 
607  ;  12  L.  J.  Q.  B.  253  ;  7  Jur.  748,  a  letter  was  admitted  which  had  been 
written  subsequently  to  the  commencement  of  the  action,  and  fourteen  months 
after  the  libel  complained  of.  In  Macleod  v.  Wakley,  3  C.  &  P.  311,  Lord 
Tenderten  admitted  a  paragraph  published  only  two  clays  before  the  trial. 

Defendant  was  director  of  a  company  of  which  plaintiff  was  auditor. 
Defendant  made  a  charge  against  plaintiff  in  his  absence  at  a  meeting  of  the 
Board.  At  the  next  meeting  of  the  Board  plaintiff  attended  with  his  solicitor, 
having  in  the  meantime  written  to  defendant  threatening  an  action.  Defendant 
in  consequence  refused  to  make  any  charge  or  produce  any  evidence  against 
the  plaintiff  in  the  presence  of  his  solicitor.  Held,  no  evidence  of  malice. 
Harris  v.  Thompson,  13  C.  B.  333. 
Where  the  defendant  verbally  accused  plaintiff  of  perjury,  evidence  that  sub- 
sequently to  the  slander  defendant  preferred  an  indictment  against  the  plaintiff 
for  perjury,  which  was  ignored  by  the  grand  jury,  was  received  as  evidence 
that  the  slander  was  deliberate  and  malicious,  although  it  was  a  fit  subject  for 
an  action  for  malicious  prosecution. 

Tate  v.  Humphrey,  2  Camp.  73,  n. 
And  see  Finden  v.  Westlake,  Moo.  &  Malkin,  461. 
In  an  action  for  libel  and  slander  on  privileged  occasions,  the  only  evidence 
of  malice  was  some  vague  abuse  of  the  plaintiff,  uttered  by  the  defendant  on 
the  Saturday  before  the  trial  in  a  public-house  at  Rye.  Such  abuse  had  no 
reference  to  the  slander  or  the  libel  or  to  the  action.  Held,  that  this  evidence 
was  [*281]  admissible  ;  but  that  the  judge  should  have  called  the  attention  of 
the  jury  to  the  vagueness  of  the  defendant's  remarks  in  the  public-house,  to  the 
fact  that  they  were  uttered  many  months  after  the  alleged  slander  and  libel,  and 
that  therefore  they  were  but  very  faint  evidence  that  the  defendant  bore  the 
plaintiff  malice  at  the  time  of  the  publication  of  the  alleged  slander  and  libel. 
A  new  trial  was  ordered.     Costs  to  abide  the  event. 

Hammings  v.  Gasson,  E.  B.  &  E.  346  ;  27  L.  S.  Q.  B.  252  ;  4  Jur. 

N.  S.  834. 

Defendant  charged  the  plaintiff,  his  porter,  with  stealing  his  bed-sticks,  and 

with  plaintiff's  permission  subsequently  searched  his  housed  but  found  no  stolen 

property.     The  jury  found  that  the  defendant  bond  fide  believed  that  a  robbery 

had  been  committed  by  the  plaintiff,  and  made  the  charge  with  a  view  to  inves- 

(283) 


212  MALICE. 

tigation  ;  but  added,  "  the  defendant  ought  not  to  have  said  what  he  could  not 
prove."  Held,  that  this  finding  was  immaterial,  that  the  occasion  was  privi- 
[e'ged,  and  thai  there  was  no  evidence  of  malice.     Judgment  for  the  defendant. 

Howe  v.  Jones,  1  Times  L.  R.  19,  461. 

Fowler  and  wife  v.  Homer,  3  Camp.  294. 

II.    Evidence    of  malice    derived  from   the  mode  and  extent  of 
publication^  the  terms  employed,  <&c. 

The  plaintiff  is  not  restricted  to  extrinsic  evidence  of  malice 
(  Wright  v.  Woodgate,  2  C.  M.  &  R.  573  ;  1  Tyr.  &  G.  12  ;  1  Gale, 
329)  ;  he  may  rely  on  the  words  of  the  libel  itself  and  the  circum- 
stances attending  its  publication  ;  or  in  the  case  of  slander  upon  the 
exaggerated  language  used,  on  the  fact  that  third  persons  were  pres- 
ent who  were  not  concerned  in  the  matter,  &c.  &c. 

The  fact  that  the  defendant  was  mistaken  in  the  information  he 
gave  is,  as  we  have  seen,  no  evidence  of  malice  :  ante,  p.  272.  The 
jury  must  look  at  the  circumstances  as  they  presented  themselves  to 
the  mind  of  the  defendant  at  the  time  of  the  publication  ;  not  at 
what  are  proved  at  the  trial  to  have  been  the  true  facts  of  the  case. 
It  is  a  question  of  bona  fides :  Did  the  defendant  honestly  believe 
that  he  had  a  duty  to  perform  in  the  matter,  and  act  under  a  sense 
of  that  duty  ?  That  other  men  would  not  have  so  acted  is  imma- 
terial. Tliat  shrewder  men  would  have  seen  through  the  tangled 
web  of  facts,  and  have  discovered  that  things  were  not  as  they 
seemed,  is  [*  282]  absolutely  immaterial.  The  question  is,  Did 
the  actual  defendant  honestly  believe  what  he  said  ?  not  whether 
a  reasonable  man  so  placed  would  have  believed  it,  (Per  Brett,  L. 
J.,  3  Q.  B.  D.  248.)  The  defendant  will  not  lose  the  privilege 
afforded  by  the  occasion  merely  because  his  reasoning  powers  were 
defective.  (Per  Cotton,  L.  J.,  ib.  249.)  "People  believe  unreason- 
able things  bond  fide,"  says  O'Hagan,  J.,  in  Fitzgerald  v.  Campbell, 
15  L.  T.  75. 

Similarly,  the  fact  that  he  relied  upon  hearsay  evidence  without 
seeking  primary  evidence  is  no  evidence  of  malice.  (Per  Lord  West- 
bury  in  Lister  v.  Ferryman,  L.  R.  4  II.  L.  521  ;  overruling  (Exch. 
Ch.)  L.  R.  3  Exch.  197.)  Men  of  business  habitually  act  upon  hear- 
say evidence  in  matters  of  the  greatest  importance.  But  this  is 
supposing  of  course  that  the  defendant  is  guilty  of  no  laches,  and 
does  not  wilfully  shut  his  eyes  to  any  source  of  information.  If, 
indeed,  there  were  means  at  hand  for  ascertaining  the  truth  of  the 
matter,  of  which  the  defendant  neglects  to  avail  himself,  and  chooses 
rather  to  remain  in  ignorance  when  he  might  have  obtained  full 
information,  this  wilfbe  evidence  of  such  wilful  blindness  as  may 
amount  to  malice. 

But  if  defendant  at  the  time  of  publication  knew  that  what  he 
said  was  false,  this  is  clear  evidence  of  malice.  A  man  who  know- 
ingly makes  a  false  charge  against  his  neighbour  -  cannot  claim 
privilege.  It  can  never  be  his  duty  to  circulate  lies.  And  if  the 
statement  was  made  wantonly,  without  the  defendant's  knowing  or 
caring  whether  it  was  true  or  false,  such  recklessness  is  considered 

(284) 


EXPRESSIONS    IN     EXCESS. 


2,13 


as  malicious  as  deliberate  falsehood.   (Clark  x.Molyneux,  3  Q.  B.  D. 
247  ;  47  L.  J.  Q.  B.  230  ;  26  W.  R.  104  ;  37  L.  T.  004.) 

So  if  in  writing  or  speaking  on  a  privileged  occasion  the  defend- 
ant breaks  out  into  irrelevant  charges  against  the  plaintiff  wholly 
unconnected  with  the  occasion  whence  the  privilege  is  derived,  such 
excess  will  be  evidence  of  malice  ;  or  speaking  more  accurately, 
such  irrelevant  charges  are  wholly  unprivileged,  and  no  question  of 
actual  malice  arises  [*  283]  as  to  them;  unless  defendant  proves 
them  true  the  verdict  must  go  against  him.  (Huntley  v.  Ward,  6 
C.  B.  N.  S.  514  ;  0  Jur.  N.  S.  18  ;  Senior  v.  Medland,  4  Jur.  N".  8. 
1039  ;  Picton  v.  Jackman,  4  C.  &  P.  257  ;  Simmonds  v.  JJunne,  Ir. 
R.  5  C.  L.  358.)  One  part  of  a  letter  may  be  privileged  ;  other  parts 
of  the  same  unprivileged.  (  Warren  v.  Warren,  1  C.  M.  &  R.  251; 
4  Tyr.  850  ;  Jacob  v.  Lawrence,  4  L.  R.  Ir.  579.) 

And  even  though  it  is  clear  that  the  defendant  believed  in  the 
truth  of  the  communication  he  made,  and  was  acting  under  a  sense 
of  duty  on  a  privileged  occasion,  the  plaintiff's  counsel  may  still  rely 
upon  the  words  employed,  and  the  manner  and  mode  of  publication, 
as  evidence  of  malice.  A  man  honestly  indignant  may  often  be  led 
away  into  exaggerated  or  unwarrantable  expressions  ;  or  he  may 
forget  where  and  in  whose  presence  he  is  speaking,  or  how  and  to 
whom  his  writing  may  be  published.  Clearly  this  is  but  faint  evi- 
dence of  actual  malice  ;  the  jury  will  generally  pardon  a  slight  ex- 
cess of  righteous  zeal.  But  in  some  cases  (which  we  will  proceed 
to  examine)  such  excess  has  secured  plaintiff  the  verdict. 

(i.)    Where  the  expressions  employed  are  exaggerated  and  uivwar- 
rantable  ;  but  there  is  no  other  evidence  of  malice. 

"  It  is  sometimes  difficult  to  determine  when  defamatory  words  in 
a  letter  may  be  considered  as  by  themselves  affording  evidence  of 
malice."  (Per  Bramwell,  L.  J.,  3  Q.  B.  D.  245.)  But  the  test  ap- 
pears to  be  this.  Take  the  facts  as  they  appeared  to  the  defendant's 
mind  at  the  time  of  publication  ;  are  the  terms  used  such  as  the 
defendant  might  have  honestly  and  bond  fide  employed  under 
the  circumstances  ?  If  so,  the  judge  should  stop  the  case.  For  if 
the  defendant  honestly  believed  the  plaintiff's  [*284]  conduct  to 
be  such  as  he  described  it,  the  mere  fact  that  he  used  strong  words 
in  describing  it  is  no  evidence  of  malice  to  go  to  the  jury.  (Spill  v. 
Maule,  Exch.  Ch.,  L.  R.  4  Exch.  232  ;  W.  R.  805  ;  20  L.  T.  675  ; 
38  L.  J.  Ex.  138.) 

But  where  the  language  used,  though  taken  in  connection  Avith 
what  was  in  defendant's  mind  at  the  time,  is  "  much  too  violent  for 
the  occasion  and  circumstances  to  which  it  is  applied,"  or  "  utterly 
beyond  and  disproportionate  to  the  facts,"  or  where  improper  mo- 
tives are  unnecessarily  imputed,  there  is  evidence  of  malice  to  go  to 
the  jury.  {Fryer  v.  Kinnersley,  15  C.  B.  N.  S.  422  ;  33  L.  J.  C.  P. 
96  ;  12  W.  R.  155  ;  9  L.  T.  415  ;  Gilpin  v.  Fowler,  9  Ex.  615  ;  23 
L.  J.  Ex.  152  ;  18  Jur.  293.)  For  in  such  a  case  it  maybe  inferred 
that  the  defendant  bore  plaintiff  a  grudge,  or  had  some  sinister 
motive  in  writing  as  he  did. 

(285) 


214  MALICE. 

Such  an  inference  will  be  readily  drawn  in  cases  where  a  rumour 
prejudicial  to  the  plaintiff  has  reached  the  defendant,  which  he  feels 
it  his  duty  to  report  to  those  concerned,  if  in  reporting  it  he  does  not 
state  the  rumour  as  it  reached  him,  but  gives  exaggerated  or  highly 
coloured  version  of  it.  "  Inimici  famam  non  ita,  ut  nata  est,  ferunt." 
(Plant.  Persa  II.  i.  23.)  But  in  other  cases  the  tendency  of  the 
Courts  is  not  to  submit  the  language  of  privileged  communications 
to  too  strict  a  scrutiny.  "  To  hold  all  excess  beyond  the  absolute 
exigency  of  the  occasion  to  be  evidence  of  malice  would  in  effect 
greatly  limit,  if  not  altogether  defeat,  that  protection  which  the  law- 
throws  over  privileged  communications."  (Per  Sir  Robert  Collier,  L. 
R.  4  P.  C.  508.)  "The  particular  expressions  ought  not  to  be  too 
strictly  scrutinized,  provided  the  intention  of  the  defendant  was 
good."  (Per  Alderson.  B.,  in  Woodioard  v.  Zander,  6  C.  &  P.  550. 
And  see  Taylor  v.  Hawkins,  16  Q.  B.  308  ;  Rmakley  v.  Kiernan,  7 
Ir.  C.  L.  R.  75  ;  B.  v.  Perry,  15  Cox,  C.  C.  169.)  That  the  expressions 
are  angry  is  not  enough  ;  the  jury  must  go  [*285]  further,  and 
see  that  they  are  malicious.  (Per  Tindal,  C.  J.,  in  Shipley  v.  Tod- 
hunter,  1  C.  &  P.  690.) 

Illustrations. 

Defendant  changed  his  printer,  and  on  a  privileged  occasion  stated  in  writing, 
as  his  reason  for  so  doing,  that  to  continue  to  pay  the  charges  made  hy  his 
former  printer,  the  plaintiff,  would  be  "to  submit  to  what  appears  to  have  been 
an  attempt  to  extort 'money  by  misrepresentation."  Held,  that  these  words, 
imputing  improper  motives  to  the  plaintiff,  were  evidence  of  malice  to  go  to 
the  iury.     Damages  £50. 

Cooke  v.  Wildes,  5  E.  &  B.  328  ;    24  L.  J.  Q.  B.  367  ;    1  Jur.  N.  S. 
610  ;  3  C.  L.  R.  1090. 

O'Donoghve  v.  Htissey,  Ir.  R.  5  C.  L.  124. 
Plaintiff  sued  defendant  on  a' bond  ;  defendant  in  public,  but  on  a  privileged 
occasion,  denounced  the  plaintiff  for  attempting  to  extort  money  from  him. 
Held,  that  the  words  were  in  excess  of  the  occasion. 

Robertson  v.  M'Dougall,  4  Bing.  670  ;  1  M.  &  P.  692  ;  3  C.  &  P.  259. 

See  Tuson  v.  Evans,  12  A.  &E.  733  ;  ante,  p.  231. 
While  the  defendant  was  engaged  in  winding  up  the  affairs  of  the  plaintiff's 
firm,  of  which  defendant  was  also  a  creditor,  the  plaintiff  took  from  the  cash-box 
a  parcel  of  bills  to  the  amount  of  £1,264.  Thereupon  the  defendant  wrote  to 
another  creditor  of  the  firm  that  the  conduct  of  the  plaintiff  "  has  been  most 
disgraceful  and  dishonest ;  and  the  result  has  been  to  diminish  materially  the 
available  assets  of  the  estate."  Held,  that  the  occasion  was  privileged,  and  that 
though  the  words  were  strong,  they  were,  when  taken  in  connection  with  the 
facts,  such  as  might  have  been  used  honestly  and  bond  fide  by  the  defendant ; 
for  the  plaintiff's  conduct  was  equivocal,  and  might  well  be  supposed  by  the 
defendant  to  be  such  as  he  described  it ;  and  that  the  judge  was  right  in 
directing  a  verdict  to  be  entered  for  the  defendant,  there  being  no  other  evidence 
of  actual  malice. 

Spill  v.  Maule  (Exch.  Ch.),  L.  R.  4  Ex.  232  ;  38  L.  J.  Ex.  138  ;  17 
W.  R.  805  ;  20  L.  T.  675. 
The  defendant  tendered  to  Brown  at  Crickhowell  two  £1  notes  on  the  plain- 
tiffs' bank,  which  Brown  returned  to  him,  saying  there  was  a  run  upon  that 
bank,  and  he  would  rather  have  gold.  The  defendant,  the  very  next  day.went 
into  Brecon,  and  told  two  or  three  people  confidentially  that  the  plaintiffs' 
bank  had  stopped,  and  that  nobody  would  take  their  bills.  Held,  that  this 
exaggeration  was  some  evidence  of  malice  to  go  to  the  jury.  Verdict  for  the 
defendant. 

Bromrige  v.  Prosser,  4  B.  &  Cr.  247  ;  6  D.  &  R.  296  ;  1  C.  &  P.  475. 

And  see  Senior  v.  Medland,  4  Jur.  N.  S.  1039. 
(286) 


UNDUE    PUBLICITY.  215 

A  gentleman  told  the  second  master  of  a  school  that  he  had  seen  one  of  the 
under-masters  of  the  school  on  oru  occasion  coming  home  al  nighl  "under  the 
influence  of  drink,"  and  desired  him  to  acquaint  the  authorities  with  the  fact. 
The  second  master  subsequently  stated  to  the  governors  thai  it  was  notorious 
that  the  under-master  came  home  "  almost  habitually  in  a  state  of  intoxication." 

There  was  no  other  evidence  of  malice.  Held,  that  Cockbum,  C.  J.,  was  right 
in  not  withdrawing  the  case  from  the  jury. 

Hume  v.  Marshall,  Times  for  November  2Gth,  1877. 

[*28G]  (ii.)  As  to  the  method  of  communication  employed. 

If  the  mode  and  extent  of  a  privileged  publication  be  deliberately 

made  more  injurious  to  the  plaintiff  than  necessary,  tlii*  is  evidence 
of  malice  in  the  publisher.  Confidential  communications  should 
not  he  shouted  across  the  street  for  all  the  world  to  hear.  (  Wilson 
v.  Collins,  5  C.  &  P.  373.)  Defamatory  remarks,  if  written  at  all, 
should  he  sent  in  a  private  letter  properly  sealed  and  fastened  up  ; 
not  written  on  a  post-card,  or  sent  by  telegraph  ;  for  two  strangers 
at  least  read  every  telegram  ;  many  more  most  post-cards.  (  William- 
son v.  Freer,  L.  R  9  C.  P.  393  ;  43  L.  J.  C.  P.  101  ;  Whitfield  v. 
S.  K  By.  Co.,  E.  B.  &  E.  115  ;  Robinson  v.  Jones,  4  L.  R.  Ir.  391.) 
Letters  as  to  the  plaintiff's  private  affairs  should  not  be  published 
in  the  newspaper,  however  meritorious  the  writer's  purpose  may  be  : 
unless,  indeed,  there  is  no  other  way  in  which  the  writer  can 
efficiently  effect  his  purpose  and  discharge  the  duty  which  the  law 
has  cast  upon  him.  But  Avhere  it  is  usual  and  obviously  convenient 
to  print  such  a  communication  as  that  complained  of,  before  circu- 
lating it  amongst  the  persons  concerned,  the  privilege  will  not  be 
lost  merely  because  of  the  necessary  publication  to  the  compositors 
and  journeymen  printers  employed  in  printing  it.  [Lawless  v. 
Anglo- Egyptian  Cotton  aud  Oil  Co.,  L.  R.  4  Q.  B.  262.)  So  with 
an  advertisement  inserted  in  a  newspaper  defamatory  of  the  plain- 
tiff ;  if  such  advertisement  be  necessary  to  protect  the  defendant's 
interests,  or  if  advertising  was  the  only  way  of  effecting  the 
defendant's  object,  and  such  object  is  a  legal  one,  then  the  circum- 
stances excuse  the  extensive  publication.  But  if  it  was  not  necessary 
to  advertise  at  all,  or  if  the  defendant's  object  could  have  been 
equally  well  effected  by  an  advertisement  which  did  not  contain 
the  words  defamatory  of  the  plaintiff,  then  the  extent  given  to  the  an- 
nouncement is  evidence  of  malice  to  go  to  the  jury.  [Br own  v  Cr<,ome, 
2  Stark.  297  ;  and  Bay  v.  Batvson,  4  A.  &  E.  795  ;  overruling,  or 
at  least  explaining,  Belany  v.  Jones,  4  Esp.  191.)  The  law  is  the 
same  as  to  posting  libellous  placards  {Cheese  v.  Scales,  in  M.  &  W. 
488)  ;  or  having  a  libellous  notice  cried  by  the  town  crier.  (  Wood- 
ard  v.  Dowsing,  2  Man.  &  Ry.  74.) 

So  with  a  privileged  oral  communication,  it  is  important  to 
observe  who  is  present  at  the  time  it  is  made.  A  desire  should  be 
shown  to  avoid  all  unnecessary  publicity.  It  is  true  that  the  acci- 
dental presence  of  an  uninterested  bystander  will  not  alone  take 
the  case  out  of  the  privilege,  and  there  are  some  communications 
which  it  is  wise  to  make  in  the  presence  of  witnesses  ;  but  if  it  can  , 
be  proved  that  defendant  purposely  chose  a  time  for  making  the 

(287) 


210  MALICE. 

communication   when  others  were  by,  whom   lie  knew  would  act 
upon  it,  this  is  evidence  of  malice. 

The  distinction  should  lie  observed  between  publications  which 
are  unprivileged,  and  circumstances  showing  malice  which  render  a 
clearly  privileged  publication  actionable.  To  deliberately  give  any 
unnecessary  publicity  to  statements  defamatory  of  another,  raises 
at  least  a  suspicion  of  malice.  But  if  I  accidentally  or  inadvert- 
ently communicate  the  statement  to  a  person  who  is  unconcerned 
in  its  subject-matter,  having  no  formed  intention  or  desire  of  de- 
faming the  plaintiff  to  him,  this  is  no  evidence  of  malice  ;  though 
it  may  be  that  the  publication  to  him  is  unprivileged  ab  initio. 
(Tompson  v.  Dashwood,  11  Q.  B.  D.  43  ;  52  L.  J.  Q.  B.  425  ;  48  L. 
T.  943  ;  48  J.  P.  55.)  Again,  if  in  writing  or  speaking  on  a  priv- 
ileged occasion,  the  defendant  breaks  out  into  irrelevant  charges 
against  the  plaintiff,  wholly  unconnected  with  the  occasion  whence 
the  privilege  is  derived,  such  excess  may  perhaps  be  regarded  as 
evidence  of  malice,  making  the  relevant  matter  actionable  ;  but  it  is 
more  accurate  to  say  that  such  irrelevant  charges  are  wholly  un- 
privileged, and  no  question  of  actual  malice  arises  as  to  them  ; 
unless  defendant  proves  them  true,  the  verdict  must  go  against  him. 
{Huntley  v.  Ward,  6  C.  B.  N.  S.  514  ;  6  Jur.  K  S.  18  ;  ^Warren  v. 
Warren,  1  C.  M.  &  R.  251  ;  4  Tyr.  850.)  So  the  fact  that  the 
defendant  volunteered  the  information  is  no  evidence  of  malice  if  it 
was  his  duty  to  volunteer  it.  But  if  the  defendant's  interference 
was  officious  and  uncalled  for,  then  his  communication  never  was 
privileged,  and  no  inquiry  need  be  made  as  to  [*  288]  the  existence 
of  malice.  Again,  an  uneducated,  or  even  a  well-educated,  man 
may  easily  make  a  bond  fide  mistake  as  to  the  respective  functions  of 
various  state  officials.  Such  a  mistake  therefore  is  no  evidence  of 
malice.  If  in  seeking  redress  for  some  grievance  I  invoke  the  aid 
of  someone  who  has  no  possible  duty  or  power  to  remedy  the  abuse 
complained  of,  the  communication  to  him  may  or  may  not  be 
wholly  unprivileged  (see  ante,  p.  227)  ;  but  it  is  certainly  not 
malicious,  unless  I  purposely  selected  that  individual  in  order  to  do 
the  plaintiff  the  greater  injury. 

Illustrations. 

The  defendant,  the  tenant  of  a  farm,  required  some  repairs  to  be  done  at  his 
house  ;  the  landlord's  agent  sent  up  two  workmen,  one  of  whom  was  the  plain- 
tiff. They  made  a  bad  job  of  it ;  the  plaintiff  undoubtedly  got  drunk  while  on 
the  premises  ;  and  the  defendant  was  convinced  from  what  he  heard  that  the 
plaintiff  had  broken  open  his  cellar-door,  and  drunk  his  cider.  Two  days 
afterwards  the  defendant  met  the  plaintiff  and  a  mason  called  Taylor,  and 
charged  the  plaintiff  with  breaking  open  the  cellar-door,  getting  drunk,  and 
spoiling  the  job.  He  repeated  this  charge  later  in  the  same  day  to  Taylor  alone 
in  the  absence  of  the  plaintiff,  and  also  to  the  landlord's  agent.  Held,  that  the 
communication  to  the  landlord's  agent  was  clearly  privileged,  as  he  was  the 
plaintiff's  employer  ;  that  the  statement  made  to  the  plaintiff  in  Taylor's  pres- 
ence was  also  privileged,  if  made  honestly  and  bond  fide  ;  and  that  the  circum- 
stance of  ftn  being  made  in  the  presence  of  a  third  person  did  not  of  itself  make 
it  unauthorized  ;  and  that  it  was  a  question  to  be  left  to  the  jury  to  determine 
from  the  circumstances,  including  the  style  and  character  of  the  language  used, 

(288) 


UNDUE    PUBLICITY.  217 

whether  the  defendant  acted  bond  fide,  or  was  influenced  by  malicious  motives. 
But  that  the  statement  t<»  Taylor,  in  the  absence  of  the  plaintiff,  was  unauthor- 
ized and  officious,  and  therefore  not  protected,  although  made  in  the  beliei  oi 
its  truth,  if  it  were  in  point  of  fact  false.  Defendant  had,  in  fact,  repeated  Hi'' 
charge  once  too  often. 

Toogood  v.  Spyrmg,  1  Cr.  M.  &  R.  181  ;  4  Tj  r.  582. 
If  libellous  matter,  winch  would  have  been  privileged  ii  sent  in  a  scaled  letter, 
be  transmitted  unnecessarily  by  telegraph,  the  privilege  is  thereby  lost. 

Williamson  v.  Freer,  L.  R.  "J  C.  P.  393  ;  43  l>.  .J.  C.  P.  161  ;  22  W. 
R.  878  ;  30  L.  T.  332. 
An  Irish  Court  will  take  judicial  notice  of  the  nature  of  a  post-card,  and  will 
presume  that  others  besides  the  person  to  whom  it  is  addressed  will  read  what 
is  written  thereon. 

Robinson  v.  Jones,  4  L.  R.  Ir.  391. 
The  defendant  was  a  customer  at  the  plaintiff's  shop,  and  had  occasion  to 
complain  of  what  he  considered  fraud  and  dishonesty  in  the  plaintiff's  conduct 
of  his  business  ;  but.  instead  of  remonst  rating  quietly  with  him,  the  defendant 
stood  outside  the  shop-door,  and  spoke  so  loud  as  to  be  heard  by  everyone 
passing  down  the  street.  The  language  he  employed  also  was  stronger  than  the 
[*  289]  occasion  warranted.  Held,  that  there  was  evidence  of  malice  to  go  to 
the  jury.     Damages  40s. 

Oddy  v.  Lord  George  Paulet,  4  F.  &  F.  1009. 
And  see  Wilson  v.  Collins,  5  C.  &  P.  373. 
That  defendant  caused  the  libel  to  be  industriously  circulated  is  evidence  of 
malice. 

Gathercole  v.  Miall,  15  M.  &  W.  319  ;  15  L.  J.  Ex.  179  ;  10  Jur.  337. 

A  shareholder  in  a  railway  company  himself  invited  reporters  for  the  press  to 

attend  a  meeting" of  the  shareholders  which  he  had  summoned,  and  at  which  he 

made  an  attack  upon  one  of  the  directors.     Held,  that  the  privilege  was  lost 

thereby. 

Peirsons  v.  Surgey,  4  F.  &  F.  247. 
And  see  Denis  v.  Outbush  and  others,  1  F.  &  F.  487. 
Defendant  having  lost  certain  bills  of  exchange,  published  a  handbill,  offering 
a  reward  for  their  recovery,  and  adding  that  he  believed  they  had  been  em- 
bezzled by  his  clerk,     His  clerk  at  that  time  still  attended  regularly  at  his  office. 
Held,  that  the  concluding  words  of  the  handbill  were  quite  unnecessary  to  defen- 
dant's object,  and  were  a  gratuitous  libel  on  the  plaintiff.     Damages  £200. 
Finden  v.  Westlake,  Moo.  &  Malk.  461. 
Defendant  accused  the  plaintiff,  in  the  presence  of  a  third  person,  of  stealing 
his  wife's  brooch  ;  plaintiff  wished  to  be  searched  ;    defendant   repeated  the 
accusation  to  two  women,  who  searched  the  plaintiff  and  found  nothing.     Sub- 
sequently, it  was  discovered  that  defendant's  wife  had  left  the  brooch  at  a 
friend's  'house.     Held,  that  the  mere  publication  to  the  two  women  did  not 
destroy  the  privilege  attaching  to  charges,  if  made  bond  fide  ;  but  that  all  the 
circumstances  should  have  been  left  to  the  jury. 

Petdmore  v.  Lawrence,  11  A.  &  E.  280  ;  4  Jur.  458  ;  3  P.  &  D.  209. 
And  see  Amann  v.  Damm,  8  C.   B.   N.  S.  597  ;  29  L.  J.  C.  P.  313  ; 
7  Jur.  N.  S.  47  ;  8  W.  R.  470. 
The  justices  were  about  to  swear  in  the  plaintiff  as  a  paid  constable,  when 
defendant,  a  parishioner,  came  forward  and  stated  that  the  plaintiff  was  an  im- 
proper person  to  be  a  constable.     Held,  that  the  fact  that  several  other  persons 
besides  the  justices  were  present,  as  usual,  did  not  destroy  the  privilege  attach- 
ing to  such  bond  fide  remark. 

Kershaw  v.  Bailey,  1  Ex.  743  ;  17  L.  J.  Ex   129. 
The  fact  that  defendant's  wife  was  present  on  a  privileged  occasion,  and  heard 
what  her  husband  said,  will  not  take  away  the  privilege,  so  long  as  her  presence, 
though  unnecessary,  was  not  improper. 

Jones  v.  Thomas.  34  W.  R.  104  ;  53  L.  T.  678  ;  50  J.  P.  149. 

Where  a  master  about  to  dismiss  his  servant  for  dishonesty  calls  in  a  friend  to 

hear  what  passes,  the  presence  of  such  third  party  will  not  destroy  the  privilege. 

Taylor  v.  Heiwkins,  16  Q.  B.  308  ;  20  L.  J.   Q.  B.  313  ;  15  Jur.  74(5. 

Where  a  master  discharged  his  footman  and  cook,  and  they  asked  him  his 

(289) 


218  MALICE. 

reason  for  doing  so,  and  he  told  the  footman,  in  the  absence  of  the  cook,  that 
"  he  and  the  cook  had  been  robbing  him,"  and  told  the  cook  in  the  absence  of 
the  footman  that  Ik;  had  discharged  her  "  because  she  and  the  footman  had  been 
robbing  him."  Held,  that  these  were  privileged  communications  as  respected 
the  absent  parties,  as  well  as  those  to  whom  they  were  respectively  made. 

Manby  v.  Witt         |  18  C.  B.  544  ;  25  L.  J.  C.  P.  294  ;  2  Jur.  N.  S. 

Eastmead  v.  Witt  \  1004. 
[*290]  The  defendant  in  a  petition  to  the  House  of  Commons  charged  the 
plaintiff  with  extortion  and  oppression  in  his  office  of  vicar-g(  neral  to  the  Bishop 
of  Lincoln.  Copies  of  the  petition  were  printed  and  delivered  to  the  members  of 
the  committee  appointed  by  the  House  to  hear  and  examine  grievances,  in 
accordance  with  the  usual  order  of  proceeding  in  the  House.  No  copy  was 
delivered  to  any  one  not  a  member  of  Parliament.  Held,  that  the  petition  was 
privileged,  although  the  matter  contained  in  it  was  false  and  scandalous  ;  and 
so  were  all  the  printed  copies  :  for,  though  the  printing  was  a  publication  to  the 
printers  and  compositors,  still  it  was  the  usual  course  of  proceeding  in  Parlia- 
ment ;  and  it  \»  as  not  so  great  a  publication  as  to  have  so  many  copies  trans- 
scribed  by  several  clerks. 

Lake  v.  King,  1  Lev.  240  :  1  Saund.  131  ;  Sid.  414  ;  1  Mod.  58. 

See  Lawless  v.  Anglo-Egyptian  Cotton  and  Oil  Co.,  Limited,  L.  R. 
4  Q.  B.  262  ;  10  B.  &S.  229  ;  38  L.  J.  Q.  B.  129  ;  17  W.  R.  498  ; 
ante,  p.  246. 


(290) 


t*29i]  CHAPTER    X. 

DAMAGES. 

Damages  are  of  two  kinds  : — 

(i.)  General, 
(ii.)  Special. 

General  Damages  are  such  as  the  law  will  presume  to  be  the 
natural  or  probable  consequences  of  the  defendant's  words  ;  they 
need  not  therefore  be  proved  by  evidence. 

Special  Damages  are  such  as  the  law  will  not  infer  from  the 
nature  of  the  words  themselves  ;  they  must  therefore  be  especially 
claimed  on  the  pleadings,  and  evidence  of  them  must  be  given  at  the 
trial.  Such  damages  depend  upon  the  special  circumstances  of  the 
case,  upon  the  defendant's  position,  upon  the  conduct  of  third  per- 
sons, &c,  &c.  Very  probably  they  would  not  have  been  incurred, 
had  the  same  words  been  spoken  on  another  occasion,  or  to  different 
hearers. 

In  some  cases  special  damage  is  also  a  necesaiy  element  in  the 
cause  of  action.  When  on  the  face  of  them,  the  words  used  by  the 
defendant  clearly  must  have  injured  the  plaintiff's  reputation,  they 
are  said  to  be  actionable  per  se  ;  and  the  plaintiff  may  recover  a  ver- 
dict for  a  substantial  amount,  without  giving  any  evidence  of  actual 
pecuniary  loss.  But  where  the  words  are  not  on  the  face  of  them 
such  as  the  courts  will  presume  to  be  necessarily  prejudicial  to  the 
plaintiff's  reputation,  their  evidence  must  be  given  to  show  that  in 
fact  some  appreciable  injury  has  in  this  case  [*  262]  followed  from 
their  use,  or  the  plaintiff  will  be  nonsuited.  The  injury  to  the  plain- 
tiff's reputation  is  the  gist  of  the  action  ;  he  has  to  show  that  his 
character  has  suffered  through  the  defendant's  false  assertions  ;  and 
where  there  is  no  presumption  in  plaintiff's  favour,  he  can  only  show 
this  by  giving  evidence  of  some  special  damage. 

It  will  be  convenient  to  divide  this  chapter  into  the  following 
heads  : — 

I. — General  Damages. 

II. — Special  Damage,  where  the  words  are  not  actionable  per  se. 

III. — Special    damage,    where  the  words  are  actionable  per   se. 

IV. — Evidence  for  the  plaintiff  in  aggravation  of  damages  : — 

V. — Evidence  for  the  defendant  in  mitigation  of  damages. 

(291) 


220  DAMAGES. 

(i.)  Evidence  falling  short  of  a  justification, 

(ii.)  Previous  publication  by  others, 

(iii.)  Liability  of  others, 

(iv.)  Absence  of  malice. 

(v.)  Plaintiff's  bad  charactei'. 

(vi.)  Absence  of  special  damage, 

(vii.)  Apology  and  amends. 

VI. — Remoteness  of  damages. 


[*293]  J. — General  Damages. 

General  Damages  are  such  as  the  law  will  presume  to  be  the  natural 
or  probable  consequence  of  the  defendant's  conduct.  They  arise  by 
inference  of  law  ;  and  need  not  therefore  be  proved  by  evidence. 
Such  damages  may  be  recovered  wherever  the  immediate  tendency 
of  the  words  is  to  impair  the  plaintiff's  reputation,  although  no 
actual  pecuniary  loss  has  in  fact  resulted. 

Such  general  damages  will  only  be  presumed  where  the  words  are 
actionable  per  se.  If  any  special  damage  has  also  been  suffered, 
it  should  be  set  out  on  the  pleadings  ;  but,  should  plaintiff  fail  in 
proving  it  at  the  trial,  he  may  still  of  course  resort  to  and  recover 
general  damages.  ( Cook  v.  Field,  3  Esp.  133  ;  Smith  v.  Thomas, 
2  Bing.  N.  C.  372,  380  ;  2  Scott,  546;  4  Dowl.  333;  1  Hodges,  353  ; 
Brown  Vj  Smith,  13  C.  B.  596;  22  L.  J.  G.  P.  151  ;  17  Jur."807;  1  C. 
L.  R.  4.) 

The  jury  should  carefully  consider  the  whole  of  the  words  com- 
plained of,  and  give  the  plaintiff  such  damages  as  in  their  opinion 
will  fairly  compensate  him  for  the  injury  done  to  his  reputation 
thereby.  The  amount  of  damages  is  "  peculiarly  the  province  of 
the  jury."  (Davis  &  Sons  v.  Shepstone,  11  App.  Cas.  at  p.  191; 
55  L.  T.  at  p.  2.)  They  will  of  course  be  influenced  by  the  circum- 
stances attending  the  publication,  by  the  character  of  the  defama- 
tory words,  by  their  falseness,  by  the  malice  displayed  by  the 
defendant,  or  the  provocation  given  by  the  plaintiff.  They  may 
also  fairly  take  into  their  consideration  the  rank  and  position  in 
society  of  the  parties,  the  mode  of  publication  selected,  the  extent 
and  long  continuance  of  the  circulation  given  to  the  defamatory 
words,  the  tardiness  or  inadequacy,  or  entire  absence,  of  any 
apology,  the  fact  that  the  defendant  could  have  easily  ascer- 
[*294]  tained  that  the  charge  he  made  was  false,  &c,  &c.  Where 
the  words  affect  a  trader  in  the  way  of  his  trade,  figures  may  be  laid 
before  the  jury,  showing  that  his  business  has  fallen  off  in  conse- 
quence. (Harrison  v.  Pearce,  1  F.  &  F.  569  ;  Evans  v.  Harries,  1 
H.  &  N.  251  ;  26  L.   J.  Ex.  31  ;  Ingram  v.  Laicson,  6  Bing.  N".  C. 

(292) 


GENERAL    DAMAGES.  221 

212;  8  Scott,  471 ;  4  Jur.  151;  9  ('.  &  P.  326; post,  p.  308.)  Even  if 
no  evidence  be  offered  by  the  plaintiff  as  to  damages,  the  jury  arc 
in  no  way  bound  to  give  nominal  damages  only;  they  may  read 
the  libd  and  j^ive  such  substantial  damages  as  will  compensate  the 
plaintiff  for  such  defamation.  (Tripp  v.  Thomas;  3  B.  &.  C.  427.) 
The  damages  which  the  jury  award  a  plaintiff  may  be  either, — 

(  i.  )  contemptuous, 
( ii.  )  nominal, 
(iii.)   substantial,  or 
(iv.)  vindictive. 

(i).  Contemptuous  damages  are  awarded  when  the  jury  consider 
that  the  action  should  never  have  been  brought.  The  defendant 
may  have  just  overstepped  the  line,  but  the  plaintiff  is  also  some- 
what to  blame  in  the  matter,  or  has  rushed  into  litigation  unneces- 
sarily; so  he  only  recovers  a  farthing  or  a  shilling.  There  is  no 
necessary  inconsistency  in  a  jury  finding  that  a  libel  was  written  mal- 
iciously and  yet  awarding  only  a  farthing  damages.  (Cooke  v. 
Brodgen  &  Co.  1  Times  L.  R.  497.) 

(ii.)  Nominal  damages  are  generally  awarded  on  a  compromise, 
where  the  plaintiff  has  not  suffered  any  special  damage  and  does 
not  desire  to  put  money  into  his  pocket;  he  has  cleared  his  character 
and  is  content  to  accept  forty  shillings  and  his  costs. 

(iii.)  Substantial  damages  are  awarded  where  the  jury  seriously 
endeavour,  as  men  of  business,  to  arrive  at  a  figure  which  will 
fairly  compensate  the  plaintiff  for  the  injury  he  has  sustained. 

[*295]  (iv.)  Vindictive  or  retributory  or  exemplar}/  damages  are 
awarded  where  the  jury  desire  to  mark  their  sense  of  the  defend- 
ant's harsh  and  unfeeling  conduct,  by  fining  him  to  a  certain  ex- 
tent ;  they  therefore  punish  the  defendant  by  awarding  the  plain- 
tiff damages  in  excess  of  the  amount  which  would  be  adequate 
compensation  for  the  injury  inflicted  on  his  reputation.  Thus,  in  a 
recent  case,  where  a  letter  was  sent  privately  to  one  person  only,  on 
whom  it  made  no  impression,  as  she  did  not  believe  a  word  con- 
tained in  it,  the  jury  yet  awarded  £3,000,  on  the  ground  that 
"  there  must  have  been  some  vindictiveness."  (Adams  v.  Coleridge, 
1  Times  L.  R.  at  p.  87.)  It  is  clearly  competent  to  a  jury  to  find 
vindictive  damages  in  an  action  of  libel  or  slander.  ( Lord  Towns- 
hend  v.  Hughes^  Mod.  150  ;  Emblen  v.  Myers,  6  H.  &  1ST.  54  ;  30 
L.  J.  Ex.  71  ;  Bell  v.  Midland  Bail.  Co.,  10  C.  B.  N.  S.  287  ;  30 
L.  J.  C.  P.  273  ;  9  W.  R.  612  ;  4  L.  T.  293.) 

"  The  damages  in  such  an  action  are  not  limited  to  the  amount 
of  pecuniary  loss  which  the  plaintiff  is  able  to  prove."  (Davis  cb 
Sons  v.  Shepstone,  11  App.  Cas.  at  p.  191  ;  55  L.  J.  C.  51  ;  34  W. 
R.  722  ;  55  L.  T.  at  p.  2.) 

The  jury  must  assess  the  damages  once  for  all  ( Gregory  and 
another  v.  Williams,  1  C.  &K.)  568;  no  fresh  action  can  be  brought 
for  any  subsequent  damage  (Fitter  v.  Veal,  12  Mod.  542  ;  B.  N.  P. 
7),  except  where  the  words  are  not  actionable  per  se  (post,  p.  306). 
They  should,  therefore,  take  into  their  consideration  not  only  the 

(293) 


222  DAMAGES. 

damage  that  has  accrued,  but  also  such  damage,  if  any,  as  will  arise 
from  the  defamatory  words  in  the  future.  {Lord  Toionshend  v. 
Hughes,  2  Mod.  150  ;  Ingram,  v.  Lawson,  6  Bing.  N.  C.  212  ;  8 
Scott,  471,  477  ;  4  Jur.  151  ;  9  C.  &  P.  326.)  They  should  com- 
pensate the  plaintiff  for  every  loss  which  would  naturally  result 
from  the  words  employed  ;  but  not  for  merely  problematical  dam- 
ages that  may  possibly  happen  but  probably  will  not.  (Per  T>e 
Grey,  C.  J.,  in  Onsloio  v.  Home,  3  Wils.  188  ;  2  W.  Bl.  753  ;  and 
Bayley,  B.,  in  [*296]  Lumby  v.  Alldaij,  1  C.  &  J.  305  ;  1  Tyr. 
217  ;  and  see  Doyley  v.  lioberts,  3  Bing.  N.  C.  835  ;  5  Scott,  40  ; 
3  Hodges,  154  ;  Barley  Main  Colliery  Co.  v.  Mitchell,  11  App. 
Cas.  127  ;  55  L.  J.  Q.  B.  539  ;  54  L.  T.  882.) 

Where  the  Statute  of  Limitations  is  relied  on  as  a  defence,  but 
proof  is  given  that  one  copy  has  been  sold  by  the  defendant  within 
the, last  few  months,  the  judge  is  not  bound,  it  is  said,  to  direct  the 
jury  to  limit  the  damages  to  the  injury  which  the  plaintiff  may  be 
supposed  to  have  incurred  from  that  single  publication,  but  they 
will  take  all  the  circumstances  into  their  consideration.  [Duke  of 
Brunswick  v.  Harmer,  14  Q.  B.  185  ;  19  L.  J.  Q.  B.  20  ;  14  Jur. 
110  ;  3  C.  &  K.  10.) 

The  jury  in  assessing  damages  ought  not  to  take  into  considera- 
tion the  question  of  costs.  That  is  a  matter  entirely  for  the  judge 
(post,  p.  365).  Unless  he  interferes,  a  farthing  will  carry  costs  as 
much  as  '£1,000.  (l  Times  L.  R.  413.)  It  is  for  the  jury  to  say,  if 
they  find  for  the  plaintiff,  to  what  extent  he  has  been  damaged, 
irrespective  of  the  effect,  if  any,  which  their  verdict  may  have  on 
the  subsequent  action  of  the  judge.  (Per  Bramwell,  B.,  L.  R.  1  Q. 
B.  691,  692.) 

The  amount  at  which  general  damages  are  to  be  assessed  lies 
almost  entirely  in  the  discretion  of  the  jury  ;  the  courts  will  never 
interfere  with  the  verdict  merely  because  the  amount  is  excessive. 
A  new  trial  will  only  be  granted  where  the  verdiGt  is  so  large  as  to 
satisfy  the  court  that  it  was  perversely  in  excess  or  the  result  of 
some  gross  error  on  a  matter  of  principle  ;  it  must  be  shown  that 
the  jury  either  misconceived  the  case  or  acted  under  the  influence 
of  undue  motives.  So,  again,  where  the  damages  awarded  appear 
strangely  small,  a  new  trial  will  not  be  granted,  unless  it  is  clearly 
proved  that  the  jury  wholly  omitted  to  take  into  their  considera- 
tion some  element  of  damage  ;  or  unless  the  smallness  of  the 
amount  shows  that  the  jury  made  a  compromise,  and  did  not  really 
try  the  issue  submitted  to  them.  (Fcdve>/  v.  Stanford,  L.  R.  10 
Q.  B.  54  ;  44  L.  J.  Q.  B.  7  ;  23  W  R.  162  ;  31  L.  T.  677  ;  Kelly 
v.  Sherlock,  L.  R.  1  Q.  B.  686,  697  ;  35  L.  J.  Q.  B.  209  ;  12  Jur. 
N.  S.  937  ;  Forsdike  and  wife  v.  [*297]  Stone,  L.  R  3  C.  P.  607  ; 
37  L.  J.  C.  P.  301  ;  16  W.  R.  976  ;  18  L.  T.  722.)  But  where  the 
plaintiff  is  entitled  to  substantial  damages,  and  the  verdict  in  his 
favour  cannot  be  impeached  except  on  the  ground  that  the  dam- 
ages are  excessive,  the  court  has  power  to  refuse  a  new  trial,  on  the 
plaintiff  alone,  and  without  the  defendant,  consenting  to  the  dam- 
ages being  reduced  to  such  an  amount  as  the  court  would  consider 

(294) 


SPECIAL    DAMAGES.  223 

not  excessive,  had  thev  been  given  by  the  jury.  {B>U  v.  Lawea 
(C.  A.),  12  Q.  B.  D.  .'556  ;  53  L.  J.  Q.  B.  249  ;  32  W.  R.  607  ;  50 
L.  T.  441.) 

II. — Special   Damage  where  the  words  are  not  actionable 

PER    BE. 

Special  Damage  is  such  a  loss  as  the  law  will  not  presume  to 
have  followed  from  the  defendant's  words,  but  which  depends,  in 
part  at  least,  on  the  special  circumstances  of  the  case.  It  must 
therefore  be  proved  by  evidence  at  the  trial  ;  and  should  always  be 
explicitly  claimed  on  the  pleadings.  In  the  vast  majority  of  cases 
proof  of  special  damage  is  not  essential  to  the  right  of  action. 
Thus  it  is  not  necessary  to  prove  special  damage — 

(i.)  In  any  action  of  libel. 

(ii.)  Whenever  the  words  spoken  impute  to  the  plaintiff  the  com- 
mission of  any  indictable  offence. 

(iii.)  Or  a  contagious  disease. 

(iv.)  Or  are  spoken  of  him  in  the  way  of  his  profession  or  trade 
or  disparage  him  in  an  office  of  public  trust. 

Such  words,  from  their  natural  and  immediate  tendency  to  pro- 
duce injury,  the  law  adjudges  to  be  defamatory,  although  no  special 
loss  or  damage  is,  or  can  be,  proved.  Though  even  in  these  cases,  if 
any  special  damage  has  in  fact  accrued,  the  plaintiff  may  of  course 
prove  it  to  aggravate  the  damages. 

But  in  all  cases  not  included  in  any  of  the  above  four  classes, 
proof  of  special  damage  is  essential  to  the  cause  of  [*  298]  action  ; 
for  the  words  are  not  actionable  per  se.  The  words  do  not,  appar- 
ently and  upon  the  face  of  them,  import  such  defamation  as  will  of 
course  be  injurious  ;  it  is  necessary,  therefore,  that  the  plaintiff  should 
aver  and  prove  that  some  particular  damage  has  in  fact  resulted 
from  their  use.  Such  damage,  being  essential  to  the  action,  must 
have  accrued  before  action"  brought,  A  mere  apprehension  of 
future  loss  cannot  constitute  special  damage.  "  I  know  of  no  case 
where  ever  an  action  for  words  was  grounded  upon  eventual  dam- 
ages which  may  possibly  happen  to  a  man  in  a  future  situation," 
says  De  Grey,  C.  J.,  in  Onslow  v.  Home,  3  Wils.  188  ;  2  W.  Bl. 
753.  It  must  also  be  the  natural,  immediate,  and  legal  conse- 
quence of  the  words  which  the  defendant  uttered.  {See  Remote- 
ness of  Damages,  post,  pp.  325 — 336.) 

The  special  damage  necessary  to  support  an  action  for  defamation, 
where  the  words  are  not  actionable  in  themselves,  must  be  the  loss 
of  some  material  temporal  advantage.  The  loss  of  a  marriage,  of 
employment,  of  custom,  of  profits,  and  even  of  gratuitous  enter- 
tainment and  hospitality,  will  constitute  special  damage  ;  but 
not  mere  annoyance  or  loss  of  peace  of  mind,  nor  even  physical 
illness  occasioned  by  the  defamatory  charge. 

Such  loss  may  be  either  the  loss  of  some  right  or  position  already 
acquired,  or  the  loss  of  some  future  benefit  or  advantage  the 
acquisition  of  which  is  prevented.  Thus,  if  the  defendant  causes  a 
servant    to   lose   his   situation,    or  prevents   his    getting   one,    by 

(295) 


224  DAMAGES. 

/ 

maliciously  giving  a  false  character  ;  in  either  case  an  action  will 
lie,  though  the  words  be  not  actionable  per  se.  So  if  he  prevent 
either  a  new  comer  from  going  to  the  plaintiff's  shop,  or  an  old 
customer  from  continuing  to  deal  there,  that  will  be  sufficient 
special  damage.  But  the  plaintiff  must  always  clearly  prove  that 
the  loss  is  the  direct  result  of  defendant's  words,  and  not  the  con- 
sequence of  some  independent  act,  some  spontaneous  resolve,  of  a 
third  person. 

Illustrations. 

[*299]  Anthony  Elcock,  citizen  and  mercer  of  London,  of  the  substance  and 
value  of  £3,000,  sought  Anne  Davis  in  marriage  ;  but  the  defendant  praunis- 
sorum  hand  ignarus,  accused  her  of  incontinency,  wherefore  the  said  Anthony 
wholly  refused  to  marry  the  said  Anne.  Held,  sufficient  special  damage. 
Verdict  for  the  plaintiff  for  200  marks. 

Davis  v.  Gardiner,  4  Rep.  16  ;  2  Salk.  294  ;  1  Roll.  Abr.  38. 
Ilolwood  v.  Hopkins,  Cro.  Eliz.  787  ;  post,  p.  333. 
So  if  a  man  lose  a  marriage. 

Matthew  v.  Crass,  Cro.  Jac.  323. 
Nelson  v.  Staff,  Cro.  Jac.  422. 
In  consequence  of  defendant  slandering  the  plaintiff,  a  dissenting  minister, 
his  congregation  diminished  ;  but  this  was  held  insufficient,  as  it  did  not  appear 
that  the  plaintiff  lost  any  emolument  thereby. 

Hopwood  v.  Thorn,  19  L.  J.  C,  P.  94 ;  8  C.  B.  293 ;  14  Jur.  87. 
But  see  Hartley  v.  Herring,  8  T.  R  130,  post,  p.  308. 
"  If  a  divine  is  to  be  presented  to  a  benefice,  and  one,  to  defeat  him  of  it, 
says  to  the  patron,  '  that  he  is  a  heretic,  or  a  bastard,  or  that  he  is  excommuni- 
cated,' by  which  the  patron  refuses  to  present  him  (as  he  well  might  if  the 
imputations  were  true),  and  he  loses  his  preferment,  he  shall  have  his  action  on 
the  case  for  those  slanders  tending  to  such  end." 
Davis  v.  Gardiner,  4  Rep.  17. 
Loss  of  a  situation  will  constitute  special  damage. 

Martin  v.  Strong,  5  A.  &  E.  535  ;  1  N.  &  P.  29  ;  2  H.  &  W.  336. 
Bumaey  v.  Webb  et  ux.,  11  L.  J.  C.  P.  129  ;  Car.  &  M.  104. 
Or  of  a  chaplaincy. 

Payne  v.  Beuwmorris,  1  Lev.  248. 
If,  however,  the  dismissal  from  service  be  colourable  only,  the  master  intend- 
ing to  take  the  plaintiff  back  again,  as  soon  as  the  action  is  over,  and  having 
dismissed  him  solely  in  order  that  he  might  show  special  damage  at  the  trial  ; 
this  is  no  evidence  that  the  plaintiff's  reputation  has  been  impaired,  but  rather 
the  contrary.  If,  therefore,  no  other  special  damage  can  be  proved,  the  plaintiff 
should  be  nonsuited. 

Coward  v.  Wellington,  7  C.  &  P.  531. 
If  a  man  be  refused  employment  through  defendant's  slander,  this  is  suffi- 
cient special  damage. 

Sterry  v.  Foreman,  2  C.  &  P.  592. 
So,  if  a  person  who  formerly  had  dealt  with  the  plaintiff  on  credit  refuses,  in 
consequence  of  defendant's  words,  to  deliver  to  the  plaintiff  certain  goods  he  had 
ordered  imtil  plaintiff  has  paid  for  them. 

Brown  v.  Smith,  13  C.  B.  596  ;    22  L.  J.  C.  P.  151  ;  17  Jur.  807  ;  1 

C.  L.  R.  4. 
King  v.  Watts,  8  C.  &  P.  614. 
So,  if  the  agent  of  a  certain  firm  going  to  deal  with  the  plaintiff  be  stopped 
and  dissuaded  by  the  defendant,  and   this,  although  such  firm  subsequently 
became  bankrupt,  and  paid  but  12s.  M.  in  the  £,  so  that  had  plaintiff  obtained 
the  order  he  would  have  lost  money  by  it. 

Storey  v.  Challands,  8  C.  &  P.  234. 
[*300]  The  loss  of  the  hospitality  of  friends  gratuitously  afforded  is  sufficient 
special  damage. 

Moore  v.  Meaglier,  1  Taunt.  39  ;  3  Smith,  135. 

(296) 


SPECIAL   DAMAdlO.  225 

Dome*  and  wife  v.  Solomon,  L.  R.  7  Q.  B.  112  ;   41  L.  J.  Q.  B.  10  ; 
20  W.  R.  KIT;  25  L.  T.  799. 
So  is  the  loss  of  any  gratuity  or  present,  if  it  be  dear  that  the  slander  alone 
prevented  its  receipt. 

Bracebridge  v.  Watson,  Lilly,  Entr.  61. 
Hartley  v.  Herring,  8  T.  R.  Kit*. 
In  consequence  of  defendant's  words,  a  friend  who  had  previously  voluntarily 
promised  to  give  the  plaintiff,  a  married  woman,  money  to  enable  her  to  join 
her  husband  in  Australia,  whither  he  had  immigrated  three  years  before,  refused 
to  do  so.     Held,  sufficient  special  damage. 

Corcoran  and  wife  v.  Corcoran,  7  Ir.  C.  L.  R.  272. 
The  defendant  said  of  a  married  man  that  he  had  had  two  bastards:    "by 
reason  of  which  words  discord  arose  between  him  and  his  wife,  and  they  were 
likely  to  have  been  divorced."     Held,  that  this  constituted  do  special  damage. 
Barmund'8  Case,  Cro.  Jac.  473. 
The  plaintiff  was  a  candidate  for  membership  of  the  Reform  Club,  but  upon 
a  ballot  of  the  members  was  not  elected  ;   subsequently  a  meeting  of  the  mem 
bers  was  called  to  consider  an  alteration  of  the  rules  regarding  the  election  of 
members;  before  the  day  fixed  for  the  meeting,  the  defendanl  spoke  certain 
words  concerning  the  plaintiff  which  "induced  or  contributed  to  inducing  a 
majority  of  the  members  of  the  club  to  retain  the  regulations  under  which  the 
plaintiff  had  been  rejected,  and  thereby  prevented  the  plaintiff  from  again  seek 
ins?  to  be  elected  to  the  club."    Held,  that  the  damage  alleged  was  not  pecuniary 
or  capable  of  being  estimated  in  money,  and  was  not  the  natural  and  probable 
consequence  of  the  defendant's  words. 

Chamberlain  v.  Boyd  (C.  A.),  11  Q.  B.  D.  407  ;   52  L.  J.  Q.  B.  277  ; 
31  W.  R.  572  ;  48  L.  T.  328  ;  47  J.  P.  372. 
So  where  the  words  are  not  actionable  per  se,  and  no  pecuniary  damage  has 
followed,  no  compensation  can  be  given  for  outraged  feelings,  nor  for  sickness 
induced  by  such  mental  distress,  even  though  followed  bv  a  doctor's  bill. 

Allsop  v.  Allsop,  5  H.  &  N.  534  ;   29  L.  J.  Ex.  315  ;   6  Jur.  N.  S. 

433  ;  8  W.  R.  449  ;  36  L.  T.  (Old  S.)  290. 
Lynch  v.  Knight  and  wife,  9  H.  L.   C.  577 ;    8  Jur.  N.  S.  724  ;    5 
"L.  T.  291. 
Loss  of  the  consortium  of  a  husband  is  special  damage.     Per  Lords  Campbell 
and  Cranworth  in 

Lynch  v.  Knight  and  wife,  9  H.  L.  C.  at  p.  589. 
But  not  merely  of  the  society  of  friends  and  neighbours. 
Medhurst  v.  Balam,  cited  in  1  Siderfin,  397. 

Barnes  v.  Prudlin  or  Bruddel,  1  Lev.  261  ;    1  Sid.  396  ;  1  Ventr.  4  ; 
2  Keb.  451. 
Hence,  even  the  fact  that  the  plaintiff  has  been  expelled  from  a  religious 
society  of  which  she  was  a  member,  will  not  constitute  special  damage. 

Eoberts  et  ux.  v.  Roberts,  5  B.  &  S.  384  ;  33  L.  J.  Q.  B.  249  ;  10  Jur. 
N.  S.  1027 ;  12  W.  R.  909  ;  10  L.  T.  602. 
Though  there  is  an  old  case  in  which  a  vicar  in  open  church  falsely  declared 
[*301]  that  the  plaintiff,  one  of  his  parishioners,  was  excommunicated,  and 
refused  to  celebrate  divine  service  till  the  plaintiff  departed  out  of  the  church, 
whereby  the  plaintiff  was  compelled  to  quit  the  church,  and  was  scandalized, 
and  was  hindered  of  hearing  divine  service  for  a  long  time  ;  and  it  was  held 
that  an  action  lay. 

Barnabas  v.  Traunter  (1641),  1  Vin.  Abr.  396. 
This  case  was  not  cited  to  the  Court  in  Roberts  v.  Roberts. 
The  plaintiff  in  a  recent  case  alleged  that  in  consequence  of  defendant's  words 
"she  had  suffered  considerable  annoyance,  trouble,  disgrace,   loss  of  friends, 
credit  and  reputation."     Held,  that  this  was  no  special  damage. 

Weldon  v.  Be  Bathe,  33  W.   R.  328  ;  14  Q.  B.  D.  339  ;  54  L.  J.  Q. 
B.  113  ;  53  L.  T.  520. 

So  in  Ireland. 

Plaintiff  alleged  that  she  had  been  a  novice  in  a  convent,  and  left  in  order  to 
nurse  a  sick  relative  ;  defendant  said  of  her  that  she  had  left  her  home  because 
15  LIB.  &  SLAN.  (297) 


226  DAMAGES. 

she  was  pregnant ;  whereby  the  plaintiff  alleged  she  was  prevented  from  return- 
ing to  the  convent  and  becoming  a  nun,  when  she  would  have  been  maintained 
and  supported  by  the  society  ;  and  had  also  been  brought  into  disgrace  among 
her  neighbours  and  friends,  and  had  been  deprived  of  and  ceased  to  receive 
their  hospitality.  Held,  that  no  action  lay,  as  the  plaintiff  was  neither  a  nun 
nor  a  novice  at"  the  time  the  words  were  spoken,  and  there  was  no  evidence  of 
special  damage  sufficient  in  law  to  maintain  the  action. 
JJtcyer  v.  Meehan,  18  L.  li.  Ir.  138. 

The  law  is  the  same  in  America. 

The  refusal  of  civil  entertainment  at  a  public-house  was  held  sufficient  special 
damage. 

Olmsted  v.  Miller,  1  Wend.  506. 

So  was  the  fact  that  the  plaintiff  was  turned  away  from  the  house  of  her 
uncle,  where  she  had  previously  been  a  welcome  visitor,  and  charged  not  to 
return  till  she  had  cleared  up  her  character. 
Williams  v.  Hill,  19  Wend.  305. 

So  was  the  circumstance  that  persons  who  had  been  in  the  habit  of  so  doing- 
refused  any  longer  to  provide  food  and  clothing  for  the  plaintiff. 
Beach  v.  lianny,  2  Hill  (N.  Y.),  309. 

The  defendant  told  Neiper  that  the  plaintiff  committed  adultery  with  Mrs. 
Fuller.  Neiper  had  married  Mrs.  Fuller's  sister,  and  was  an  intimate  friend  of 
the  plaintiff's.  Neiper  thought  it  his  duty  to  tell  the  plaintiff  what  people  were 
saying  of  him.  Plaintiff,  who  was  hoeing  at  the  time,  turned  pale,  felt  bad, 
flung  down  his  hoe,  and  left  the  field  ;  lost  his  appetite,  turned  melancholy, 
could  not  work  as  he  used  to  do,  and  had  to  hire  more  help.  Held,  that  such 
mental  distress  and  physical  illness  were  not  sufficient  to  constitute  special 
damage  ;  for  they  did  not  result  from  any  injury  to  the  plaintiff's  reputation, 
which  had  affected  the  conduct  of  others  towards  him.  The  Court  said,  in 
giving  judgment,  "It  would  be  highly  impolitic  to  hold  all  language,  wounding 
the  feelings  and  affecting  unfavourably  the  health  and  ability  to  labour,  of 
[*302]  another,  a  ground  of  action  :  for  that  would  be  to  make  the  right  of 
action  depend  often  upon  whether  the  sensibilities  of  a  person  spoken  of  are 
easily  excited  or  otherwise  ;  his  strength  of  mind  to  disregard  abusive  insulting 
remarks  concerning  him,  and  his  physical  strength  and  ability  to  bear  them. 
Words  which  would  make  hardly  an  impression  on  most  persons,  and  would 
be  thought  by  them,  and  should  be  by  all,  undeserving  of  notice,  might  be 
exceedingly  painful  to  some,  occasioning  sickness  and  an  interruption  of  ability 
to  attend  to  their  ordinary  avocations." 

Terwilliger  v. '  Wands,  3  Smith  (17  N.  Y.  R),  54,  overruling  Bradt  v. 
TowsUy,  13  Wend.  253,  and  Fuller  v.  Fenner,  16  Barb.  333. 

So,  too,  a  husband  cannot  maintain  an  action  for  the  loss  of  his  wife's  services 
caused  by  illness  or  mental  depression  resulting  from  defamatory  words  not 
actionable  perse  being  spoken  of  her  by  the  defendant,  For  the  wife,  if  sole, 
could  have  maintained  no  action.  "  The  facility  with  which  a  right  to  damages 
could  be  established  by  pretended  illness  where  none  exists,  constitutes  a  serious 
objection  to  such  an  action  as  this."  Per  Denio,  J.,  in 
Wilson  v.  Ooit,  3  Smith  (17  N.  Y.  R.),  445. 

Special  damage  must  always  be  explicitly  claimed  on  the  plead- 
ings and  strictly  proved  at  the  trial.  And  where  the  words  are 
not  actionable  per  se,  the  plaintiff  will  be  confined  to  the  special 
damage  laid  ;  he  must  either  prove  that,  or  be  nonsuited  ;  as  there 
are  no  general  damages  to  which  he  can  have  recourse.  And  when 
the  special  damage  is  proved,  the  jury  should  strictly  find  a  verdict 
for  the  amount  of  such  special  damage  merely.  They  ought  not  to 
compensate  the  plaintiff  for  pain,  mental  anxiety,  or  a  general  loss 
of  reputation,  but  should  confine  their  assessment  to  the  actual 
pecuniary  loss  that  has  been  alleged  and  proved.     (Dixon  v.  Smith, 

(298) 


SPECIAL    DAMAGE.  227 

5  H.  &N.  450  ;  29  L.  J.  Ex.  125.)  This  rule,  however,  is  frequently 
neglected  in  practice  ;  and  as  soon  as  any  special  is  proved,  the 
words  are  treated  as  though  they  were  actionable  per  se. 

To  allege  generally    that    in    consequence    of    the    defendant's 

words  the  plaintiff  has  lost  a  large  sum  of  money  or  that  his 
practice  or  business  has  declined,  is  not  a  sufficiently  precise  allega- 
tion of  special  damage.  The  names  of  I  he  persons  who  have  ceased  to 
employ  the  plaintiff,  or  who  would  have  commenced  to  deal  with  him, 
had  not  the  defendant  dissuaded  them,  must  be  set  out  in  the 
statement  of  claim,  or  in  the  particulars  ;  and  they  must  themselves 
[*303]  be  called  as  witnesses  at  the  trial  to  state  their  reason  for 
not  dealing  with  the  plaintiff.  Else  it  will  not  be  clear  that  their 
withholding  their  custom  was  in  consequence  of  defendant's  words; 
it  might  well  be  due  to  some  other  cause.  (Per  Lord  Kenyon,  ( '. 
J.,  in  Ashley  v.  Harrison,  1  Esp.  at  p.  50  ;  per  J  Jest,  ('.  J.,  in  Tilk  v. 
Parsons,  2  C.  &  P.  201.)  If  the  plaintiff  cannot  give  the  names  of 
those  who  have  ceased  to  deal  with  him,  or  cannot  prove  that  their 
so  ceasing  is  due  to  the  defendant's  words,  he  must  be  non-suited  ; 
although  there  has  in  fact  been  a  falling  off  in  his  business. 

And  here  note  the  distinction  between  the  loss  of  individual 
customers,  and  a  general  diminution  in  annual  profits.  Loss  of 
custom  is  special  damage,  and  must  be  specifically  alleged,  and 
the  customers'  names  stated  on  the  record  ;  if  that  be  done,  the  con- 
sequent reduction  in  plaintiff's  annual  income  can  easily  be  reckoned. 
But  if  no  names  be  given,  it  is  impossible  to  connect  the  alleged 
diminution  in  the  general  profits  of  plaintiff's  business  with  defend- 
ant's words  ;  it  may  be  due  to  fluctuations  in  prices,  to  a  change  of 
management,  to  a  new  shop  being  opened  in  opposition,  or  to  many 
other  causes.  Hence  such  an  indefinite  loss  of  business  is  considered 
general  damage,  and  can  only  be  proved  where  the  words  are 
spoken  of  the  plaintiff  in  the  way  of  his  trade,  and  so  are  actionable 
per  se.  For  there  the  law  presumes  that  such  words  must  injure  the 
plaintiff's  business  ;  and  therefore  attributes  to  those  words  the 
diminution  it  finds  in  plaintiff's  profits.     (Harrison  v.  Pearce,  1  F. 

6  F.  567  ;  32  L.  T.  (Old  S.)  298.) 

There  is  no  hardship  in  this  rule;  and  it  should  be  strictly  observed. 
The  loss  to  the  plaintiff  must  be  directly  connected  with  the  defend- 
ant's utterance  of  the  words.  If  others  repeat  his  words,  with  or 
without  additions  of  their  own,  the  defendant  is  not  liable  for  the 
consequences  of  what  they  say.  And  it  is  only  by  such  repetitions 
that  a  general  loss  of  business  can  be  brought  about.  It  is  true  that 
many  traders,  such  as  innkeepers,  tobacconists,  and  others,  seldom 
know  the  names  of  their  customers,  who  are  often  chance  passers-by. 
It  might  therefore  be  urged  that  such  traders  shoidd  never  be  re- 
quired to  state  the  names  of  particular  customers,  whether  the  words 
be  actionable  per  se  or  not.  This  is  the  law  in  Victoria  apparently. 
(See  Brady  v.  Youlden,  post,  p.  300.)  And  in  Riding  v.  Smith,  1 
Ex.  D.  91  ;  45  [*304]  L.  J.  Ex.  2S1  ;  24  W.  R.  487  ;  *34  L.  T.  500, 
Kelly,  C.  B.,  after  stating  with  great  clearness  that  "  the  words 
would  not  be  actionable  as  slander  without  proof  of  special  damage, 

(299) 


228  DAMAGES. 

which  must  be  established  not  merely  by  general  evidence  that  the 
business  has  fallen  off,  but  by  showing  that  particular  persons  have 
ceased  to  deal  with  the  plaintiff," — yet  held  that  such  evidence  was 
properly  received  in  the  case  before  him,  which  he  deemed  an  action 
on  the  case,  and  not  an  action  of  defamation.  But  it  is  clear  that 
the  Late  Lord  Chief  Baron  did  not  mean  to  lay  down  any  general 
rule,  and  that  Riding  v.  Smith  is  not  to  be  regarded  as  an  authority 
in  actions  of  defamation,  but  merely  as  an  exceptional  case  depending 
upon  its  own  peculiar  facte.  In  a  very  similar  case,  Kent  v.  Stone, 
Bristol  Summer  Assizes,  1880,  Lord  Coleridge,  C.  J.,  refused  to  fol- 
low Biding  v.  Smith  on  this  point,  as  being  contrary  to  all  previous 
decisions.  In  Clark  v.  Morgan,  38  L.  T.  354,  Grove,  J.,  points  out 
the  anomaly  which  would  follow  if  the  ride  in  Hiding  v.  Smith 
were  universally  carried  out.  The  defendant  has  spoken  to  A. 
words  which  are  not  actionable  per  se  ;  i.  e.,  words  of  such  a  char- 
acter that  the  law  will  not  presume  that  they  can  injure  the  plaintiff. 
A.  repeats  them  to  B.,  B.  to  C,  C.  to  D.,  and  so  on,  until  at  last 
the  plaintiff's  business  declines.  If  B.,  C,  and  D.  were  called,  they 
would  state  that  they  never  heard  a  word  from  the  defendant  on 
the  matter  ;  and  then  it  is  clear  law  that  the  jury  could  only  award 
the  plaintiff  damages  for  the  loss  of  A.'s  custom,  A.  being  the  one 
man  to  whom  defendant  spoke.  {Dixon  v.  Smith,  5  II.  &  1ST.  450  ; 
29  L.  J.  Ex.  125  :  Bateman  and  Wife  v.  Lyall  and  Wife,  V  C.  B. 
N.  S.  638  ;  Hirst  v.  Goodwin,  3  F.  &  F.  257.)  And  yet,  by  merely 
keeping  them  out  of  the  box,  the  plaintiff  would  (if  Biding  v.  Smith 
be  adopted  as  a  general  authority  in  cases  of  slander)  illegally  re- 
cover damages  for  the  loss  of  the  custom  of  B.,  C,  D.,  E.,  and  F. 
Lindley,  J.,  in  the  same  case  (38  L.  T.  355)  expresses  his  opinion 
that  the  decisions  in  Ward  v.  Weeks  and  Parsons  v.  Scott  have  in 
no  way  been  overruled  by  Biding  v.  Smith  and  Eoans  v.  Harris. 

As  a  rule,  words  which  cause  loss  of  custom-  to  a  trader  are 
spoken  of  him  in  the  way  of  his  trade,  and  are  therefore  actionable 
per  se.  And  in  other  cases  of  special  damage  there  is  no  difficulty  ; 
for  the  plaintiff  must  know  the  names  of  the  master  who  has  dis- 
missed him,  and  of  the  friends  who  formerly  showed  him  hos- 
pitality. 

Blustrations. 

The  plaintiff  alleged  that  in  consequence  of  the  defendant's  slander,  she  had 
"lost  several  suitors."  This  was  held  too  general  an  allegation  ;  for  the  names 
[*  305]  of  the  suitors,  if  there  were  any,  could  hardly  have  escaped  the  plaintiff's 
memory. 

Barnes  v.  Prudlin,  vel  Bruddel,  1  Sid.  396  ;  1  Ventr.  4  ;  1  Lev.  261  ; 

2  Keb.  451. 
See,  also,  Hunt  v.  Jones,  Cro.  Jac.  499. 

Dames  and  wife  v.  Solomon,  L.  R.  7  Q.  B.  112  ;  41  L.  J.  Q.  B.  10  ; 
20  W.  R.  167  ;   25  L.  T.  799. 
The  defendant  slandered  a  dissenting  minister,  who  averred  that  his  congre- 
gation diminished  in  consequence.     Held,  too  general  an  averment  to  constitute 
special  damage,  the  names  of  the  absentees  not  being  given. 

Hopwood  v.  Thorn,  8  C.  B.  293  ;  19  L.  J.  C.  P.  94  ;  14  Jur.  87. 
Such  an  averment  would  have  been  sufficient,  had  the  words  been  spoken  of 
the  plaintiff  in  the  way  of  his  office,  and  so  actionable  per  se. 

(300) 


SPECIAL    DAMAGE.  229 

Hartley  v.  Herring,  8  T.  11.  130. 

Eoamr.  Harries,  1  J  I.  &  N.  254  ;  20  L.  J.  Ex.  81. 

Dawes  intended  to  employ  the  plaintiff,  a  surgeon  and  accoucheur,  at  his 
wife's  approaching  confinement;  but  the  defendant  told  Dawes  that,  the  plain- 
tiff's female  servant  had  had  a  child  by  the  plaintiff:  Dawes  consequently 
decided  not  to  employ  the  plaintiff:  Dawes  told  his  mother  and  his  wife's  sister 
what  defendant  had  said;  and  consequently  the  plaintiff's  practice  fell  oil'  eon 
siderablv  among  Dawes'  friends  and  acquaintances  and  others.     The  fee  for ■ 

confinement  was  a  guinea.     Held,  that  the  plaintiff  was  entitled  to  more  than 
the  one  guinea  ;  the  jury  shouldgive  him  such  a  sum  as  they  considered  Dawes' 
custom  was  worth  to'  him  ;  hut  that  the  plaintiff   clearly  could  not  recover  anj 
thing  for  the  general  decline  of  his  business,  which  was  caused  by  the  gossip 
of  Dawes'  mother  and  sister-in-law. 

Dixon  v.  Smith,  5  II.  &  N.  450  ;  29  L.  J.  Ex.  125. 

The  law  is  the  same  in  America. 

The  plaintiff  alleged  that  the  defendant's  words  had  "injured  her  in  her 
good  name,  and  caused  her  relatives  and  friends  to  slight  and  shun  her."  This 
was  held  to  disclose  no  special  damage. 

Bassell  v.  Elmore,  48  N.  Y.  II.  563  ;  65  Barb.  627. 
Oeisler  v.  Brown,  6  Neb.  254. 
So  when;  the  allegation  was  merely  that  by  reason  of   defendant's  words 
"the  plaintiff  had  been  slighted,  neglected,  and  misused  by  the  neighbours  and 
her  former  associates  and  turned  out  of  doors.  " 
Pettibone  v.  Simpson,  66  Barb.  492. 
A  general  allegation  that  by  reason  of  defendant's  acts,  plaintiff  had  been 
compelled  to  pay  a  large  sum  o*f  money,  without  showing  how,  was  held  insuf- 
ficient. 

Cook  v.  Cook,  100  Mass.  194. 

Pollard  v.  Lyon,  1  Otto  (91  U.  S.),  225. 

But  in  Australia  a  different  rule  apparently  prevails. 

To  say  to  the  keeper  of  a  restaurant,  "  You  are  an  infernal  rogue  and  swin- 
dler," [*  306]  was  held,  in  the  Supreme  Court  of  Victoria,  not  actionable  without 
proof  of  special  damage,  as  not  affecting  plaintiff  in  his  trade.  But  the  plaintiff 
having  alleged  that,  by  reason  of  the  words,  people  who  used  to  frequent  his 
restaurant  ceased  to  deal  with  him,  it  was  held  the  special  damage  made  the 
words  actionable,  and  that  the  special  damage  was  sufficiently  alleged  ;  that  the 
cases  of  frequenters  of  theatres,  members  of  congregations,  and  travelers  using 
an  inn,  were  exceptions  to  the  rule  requiring  the  names  of  the  customers  lost 
to  be  set  forth.  . 

Brady  v.  Youlden,  Kerferd  &  Box's  Digest  of  Victoria  Cases,  709  ; 
Melbourne  Argus  Reports,  6  Sept.  1867,  sed  qtiCBre. 

Where  the  words  are  not  actionable  without  special  damage,  the 
jury,  as  we  have  seen,  must  confine  their  consideration  to  such  spe- 
cial damage  as  is  specially  alleged  and  proved.  It  may,  therefore, 
very  well  be  argued  that  if  any  fresh  damage  followed  in  the  future, 
that  would  constitute  a  fresh  ground  of  action.  And  of  this  opin- 
ion was  North,  C.  J.,  in  Lord  Townshend  vs.  Hughes,  2  Mod.  150. 
But  Buller,  in  his  "Nisi  Prius,"  p.  7,  lays  it  down  most  distinctly, 
that  where  a  plaintiff  "  lias  once  recovered  damages,  he  cannot  after 
bring  an  action  for  any  other  special  damage,  whether  the  words  be 
in  themselves  actionable  or  not."  And  Lord  Holt  is  certainly 
reported  as  saying  so  obiter  in  Fitter  v.  Veal,  12  Mod.  542  ;  not  in 
the  other  reports,  1  Ld.  Raym.  339,  692  ;  1  Salk.  11.  The  matter 
was  much  discussed  in  Darley  Main  Colliery  Co.  v.  Mitchell,  11 

(301) 


230  DAMAGES. 

App.  Cas.  12V  ;  55  L.  J.  Q.  B.  529  ;  54  L.  T.  882,  and  Lord  Black- 
burn unfortunately  differed  from  Lord  Bramwell  (11  App.  Cas.  pp. 
143,  145).  I  think,  however,  after  the  decision  in  that  case,  the 
better  opinion  is  that  a  second  action  will  lie  for  fresh  special 
damage. 

III. — Special  Damage  where  the  words  are  actionable  per  se. 

Where  special  damage  is  not  essential  to  the  action,  it  may  still 
of  course  be  proved  at  the  trial  to  aggravate  the  damages,  if  it  has 
been  properly  pleaded.  The  same  particularity  is  required  whether 
the  words  be  actionable  per  se  or  not.  So,  too,  plaintiff  must  still 
prove  that  the  special  damage  alleged  is  the  direct  result  of  the 
defendant's  words,  and  not  of  any  repetition  of  them  by  others. 
(Tunnicliffe  v.  Moss,  3  C.  &  K.  83  ;  Hirst  v.  Goodwin,  3  F.  &  F. 
257.)  But  in  other  respects  the  law  is  not  quite  [*  307[  so  strict  as 
to  what  constitutes  special  damage  in  the  first  case  as  in  the  second. 

Thus,  where  the  words  are  not  actionable  per  se,  we  have  seen 
that  mental  distress,  illness,  expulsion  from  a  religious  society,  &c, 
do  not  constitute  special  damage.  But  where  the  words  are  action- 
able per  se,  the  jury  may  take  such  matters  into  their  consideration 
in  according  damages.  "  Mental  pain  or  anxiety  the  law  cannot 
value,  and  does  not  pretend  to  redress,  when  the  unlawful  act  com- 
plained of  causes  that  alone  ;  though  where  a  material  damage  occurs, 
and  is  connected  with  it,  it  is  impossible  a  jury,  in  estimating  it, 
should  altogether  overlook  the  feelings  of  the  party  interested." 
(Per  Lord  Wensleydale,  in  Lynch  v.  Knight  and  wife,  9  H.  L.  C. 
598.  See  also  Haythorn  v.  Lawson,  3  C.  &  P.  190  ;  Le  Fame  v. 
Malcolmson,  8  Ir.  L.  R.  418.)  And  had  the  charge  against  Mrs. 
Roberts  been  one  of  felony,  I  do  not  think  any  judge  would  have 
excluded  the  evidence  as  to  her  expulsion  from  her  religious  sect.  _ 

Again,  where  words  are  spoken  of  the  plaintiff  in  the  way  of  his 
profession  or  trade  so  as  to  be  actionable  per  se,  the  plaintiff  may 
allege  and  prove  a  general  diminution  of  profits  or  decline  of  trade, 
without  naming  particular  customers  or  proving  why  they  have 
ceased  to  deal  with  him.  (Ingram  v.  Lawson,  0  Bing.  N.  C.  212  ; 
8  Scott,  471  ;  4  Jur.  151  ;  9  C.  &  P.  320  ;  Harrison  v.  Pearce,  1  F. 
&  F.  509  ;  32  L.  T.  (Old  S.)  298  ;  and  per  Cresswell,  J.,  in  Rose  v. 
Groves,  5  M.  &  Gr.  018,  61*9.)  In  Delegal  v.  Highley,  8  C.  &  P. 
448,  it  is  true,  Tindal,  C.  J.,  refused  to  allow  any  evidence  to  be 
given  of  general  loss  of  business,  on  the  ground  that  the  law  already 
presumed  such  loss  in  the  plaintiff's  favour ;  but  this  decision 
must  now  be  considered  overruled.  Of  course,  if  the  plaintiff  de- 
sires to  go  into  such  details  at  the  trial,  he  may  plead  them  specially 
and  call  the  customers  named  as  witnesses.  Still  if  the  customers 
are  not  called  at  the  trial,  or  if  for  any  other  reason  the  proof  of  the 
special  damage  fails,  the  plaintiff  [*  308]  may  still  fall  back  on  the 
general  damage  and  prove  a  loss  of  income  induced  by  the  slander. 
(  Cook  v.  Meld,  3  Esp.  133  ;  Evans  v.  Harries,  1  II.  &  K  251  ;_  26 
L.  J.  Ex.  31.)  This  he  cannot  do  when  the  Avords  are  not  action- 
able per  se  ;  see  ante.  p.  303.     But  where  the  law  already  presumes 

(302) 


EVIDENCE    IN    AGGRAVATION.  231 

that  the  plaintiff  is  injured  in  his  business,  so  that  the  jury  must 
give  him  some  damages,  evidence  as  to  the  nature  and  extent  of 
plaintiff's  business  before  and  after  publication  is  clearly  admissible 

to  enable  the  jury  to  fix  the  amount. 

Lastly,  where  it  is  clear  that  the  action  lies  without  proof  of  any 
special  damage,  any  loss  or  injury  which  the  plaintiff  has  sustained 
in  consequence  of  defendant's  words,  even  after  action  brought, 
may  be  proved  to  support  the  legal  presumption,  and  to  show  from 
what  has  actually  occurred  how  injurious  and  mischievous  t hose- 
words  were. 

Illustrations. 

Where  the  defendant  advertised  in  Hue  and  Cry  that  the  plaintiff  had  been 
guilty  of  fraud,  and  offered  a  reward  for  his  apprehension,  and  the  plaintiff 
immediately  sued  on  the  libel,  and  after  action  broughl  was  twice  arrested  in 
consequence  of  it :  he  was  allowed  to  give  evidence  of  these  two  arrests  at  the 
trial,  not  indeed  as  special  damage,  for  they  happened  alter  action  brought,  but 
in  order  to  show  the  injurious  nature  of  the  libel,  and  that  the  plaintiff  was  at 
time  of  action  brought  in  serious  danger  of  being  arrested. 

Goslin  v.  Carry,  7  M.  &  Gr.  342  ;  8  Scott,  N.  R.  21. 
Where  the  defendant  published  in  a  newspaper  that  a  certain  ship  of  the 
plaintiff's  was  unseaworthy,  and  had  been  purchased  by  the  Jews  to  carry 
convicts,  evidence  as  to  the  average  profits  of  a  voyage  was  admitted,  and  also 
evidence  that  upon  the  lirst  voyage  after  the  libel  appeared  the  profits  were 
nearly  £1,500  below  the  average,  and  this  although  the  action  was  brought 
immediately  after  the  libel  appeared,  and  before  the  last-mentioned  voyage  was 
commenced.     The  jury,  however,  awarded  the  plaintiff  only  £900  damages. 

Ingram  v.  La/wson,  6  Bing.  N.  C.  212  ;  8  Scott,  471. 
Where  a  declaration  alleged  that  the  defendant  spoke  words  of  the  plaintiff,  a 
dissenting  minister,  in  the  way  of  his  office  and  profession,  and  bis  congregation 
rapidly  diminished,  and  he  was  compelled  for  a  time  to  give  up  preaching 
altogether,  and  lost  profits  thereby  ;  it  was  held  that  this  was  a  sufficient 
allegation  of  special  damage,  although  the  members  of  his  congregation  were 
not  named. 

Hartley  v.  Herring,  8  T.  R.  130. 

Hapwood  v.  Thorn,  8  C.  B.  293  ;  19  L.  J.  C.  P.  94 ;  14  Jur.  87. 
[*  309]     Where  words  actionable  per  se  are  spoken  of  an  innkeeper  in  the 
way  of  his  trade,  evidence  may  be  given  of  a  general  loss  of  custom  and  decline 
in  his  business. 

Evans  v.  Harries,  1  H.  &  N.  251  ;  26  L.  J.  Ex.  31. 
"  Suppose  a  biscuit  baker  in  Regent  Street  is  slandered  by  a  man  saving  bis 
biscuits  are  poisoned,  and  in  consequence  no  one  enters  his  shop,  He  cannot 
complain  of  the  loss  of  any  particular  customers,  for  he  does  not  know  them, 
and  how  hard  and  unjust  it  would  be  if  he  could  not  prove  the  fact  of  the  loss 
under  a  general  allegation  of  loss  of  custom."     Per  Martin,  B.,  in 

Emus  v.  Harries,  26  L.  J.  Ex.  32. 

And  see  Weiss  v.  WMttemore,  38  Michigan,  366. 
But  where  defendant  charged  plaintiff  with  larceny,  and  the  words  were 
repeated  by  H.  to  Carpmole,  who  in  consequence  refused  to  employ  plaintiff, 
evidence  of  such  special  damage  was  rejected. 

Tunnicliffe  v.  Moss,  3  C.  &  K.  83. 

Rutherford  v.  Evans,  4  C.  &  P.  74. 

Hirst  v.  Goodwin,  3  F.  &  F.  257. 

IV. — Evidence   for   the   Plaintiff   in   Aggravation   of 

Damages. 

The  violence  of  the  defendant's  language,  the  nature  of  the  impu- 
tation conveyed,  and  the  fact  that  the  defamation  was  deliberate 

(303) 


232  DAMAGES. 

and  malicious,  will  of  course  enhance  the  damages.  All  the  circum- 
stances attending  the  publication  may  therefore  be  given  in  evi- 
dence, and  any  previous  transactions  between  the  plaintiff  and  the 
defendant  which  have  any  direct  hearing  on  the  subject-matter  of 
the  action,  or  are  a  necessary  part  of  the  history  of  the  case.  The 
jury  will  also  consider  the  rank  or  position  in  society  of  the  parties, 
the  fact  that  the  attack  was  entirely  unprovoked,  that  the  defend- 
ant could  easily  have  ascertained  that  the  charge  he  made  was 
false,  &c.  So  evidence  may  be  given  to  show  that  the  defendant 
was  culpably  reckless  or  grossly  negligent  in  the  mattei\  The 
attention  of  the  jury  should  especially  be  directed  to  the  mode,  the 
extent,  and  the  long  continuance  of  publication.  Such  evidence  is 
admissible  with  a  view  to  damages,  although  the  publication  has 
been  admitted  on  the  pleadings.  (  Vines  v.  iSerell,  7  C.  &  P.  163.) 
So  defendant's  subsequent  conduct  may  aggravate  the  [*  310]  dam- 
ages ;  e.g.,  if  he  has  refused  to  listen  to  any  explanation,  or  to  re- 
tract the  charge  he  made,  or  has  only  tardily  published  an  inade- 
quate apology. 

It  must  not  be  assumed,  however,  that  every  piece  of  evidence 
which  is  admissible  to  prove  malice  when  malice  is  in  issue  (see  c. 
IX.),  is  also  admissible  in  aggravation  of  damages.  Thus  evidence 
may  be  given  of  antecedent  or  subsequent  libels  or  slanders  to  show 
that  a  communication  primd  facie  privileged  was  made  maliciously 
(c.  IX.,  p. '276)  ;  and  also  when  evidence  is  necessary  to  explain  the 
meaning  of  language  which  without  it  appears  ambiguous  (c.  III., 
p.  113).  But  such  evidence  may  not  be  given  where  the  existence 
of  malice  is  undisputed,  and  the  words  of  the  libel  are  clear. 
(Stuart  v.  Lovell,  2  Stark.  93  ;  Pearce  v.  Ornsby,  1  M.  &  Rob.  455  ; 
jSi/mmons  v.  Blake,  ib.  477  ;  2  C.  M.  &  R.  416  ;  4  Dowl.  263  ;  1 
dale,  182.)  And  when  such  evidence  is  admissible,  the  jury  should 
always  be  cautioned  to  give  no  damages  in  respect  of  it.  (Per 
Tindal,  C.  J.,  in  Pearson  v.  Lemaitre,  5  M.  &  Gr.  719  ;  12  L.  J.  Q. 
B.  253  ;  6  Scott,  K  R  607  ;  7  Jur.  748.;  7  J.  P.  336.)  It  is  only 
when  a  subsequent  libel  has  immediate  reference  to  the  one  sued  on, 
that  it  will  be  admitted  as  a  necessary  part  of  the  res  yestm.  (Fin- 
nerty  v.  Tipper,  2  Camp.  72  ;  May  v.  Brown,  3  B.  &  Cr.  113  ;  4  D. 
&  R.  670.) 

The  plaintiff  cannot  give  evidence  of  general  good  character  in 
aggravation  of  damages  merely,  unless  such  character  is  put  in  issue 
on  the  pleadings  ;  or  has  been  attacked  by  the  cross-examination  of 
the  plaintiff's  witnesses  ;  for  till  then  the  plaintiff's  character  is 
presumed  good.  (  Cornwall  v.  Richardson,  Ry.  &  M.  305  ;  Guy  v. 
Gregory,  9  C.  &  P.  584,  587  ;  Brine  v.  Bazalgette,  3  Ex.  692  ;  18 
L.  J.  Ex.  348.)  But  such  evidence  is  admissible  under  special  cir- 
cumstances to  show  that  the  libel  was  false  to  the  knowledge  of 
the  defendant,  and  must  therefore  have  been  written  maliciously. 
(Fountain  v.  Boodle,  3  Q.  B.  5  ;  2  G.  &  D.  455,  post,  p.  569.) 

[*311]  In  all  these  cases  the  malice  proved  must  be  that  of  the 
defendant.  If  two  be  sued,  the  motive  of  one  must  not  be  allowed 
to  aggravate  the  damages  against  the  other.  ( Clark  v.  JVewsam,  1 
Ex.  131,  139.)     Nor  should  the  improper  motive  of  an  agent  be 

(304) 


EVIDENCE    IX    AGGRAVATION".  233 

matter    of   aggravation    against    his    principal.      (Carmichael   v. 

Water  ford  <in<l  Limerick  Had  Co.,  13  Ir.  L.  R.  •">13  ;   Robertson  v. 

Wylde,  2  Moo.  &  Rob.  101.)     So  in  America.      (Scripps  v.  Iieilhj, 
38  Mich.  10;  Detroit  v.  Mt Arthur,  16  Midi.  447. 

Illustrations. 

If  the  libel  has  appeared  in  a  newspaper,  proof  that  th<'  particular  number 
containing  the  libel  was  gratuitously  circulated  in  the  plaintiff's  neighborhood, 
or  that  its  sale  was  in  any  way  especially  pushed,  will  enhance  the  damages. 
Gath&rcole  v.Miall,  15  M.  &  W.  819  ;  15  L.  J.  Ex.  17'J  ;  10  Jur. 
337. 
If  the  libel  was  sold  to  the  public,  indiscriminately,  heavy  damages  should  be 
given,  for  the  defendant  has  put  it  out  of  his  power  to  recall  or  contradict  his 
statements,  should  he  desire  to  do  so. 

Per  Lord  Denman,  9  A.  &  E.  at  p.  149. 
Per  Best,  C.  J.,  5  Bing.  at  p.  402. 
And  where  there  is  no  malice,  gross  negligence  on  the  part  of  the  proprietor 
of  a  newspaper  in  allowing  the  libel  to  appear  in  its  columns,  may  be  proved  to 
enhance  the  damages. 

Smith  v.  Harrison,  1  F.  &  F.  565. 
If  other  words,  injurious  and  abusive,  though  not  actionable  per  se,  were 
uttered  on  the  same  occasion  as  the  words  complained  of,  these  other  words 
may  be  given  in  evidence  as  an  aggravation  of  the  actionable  words.  "  Where 
a  wrongful  act  is  accompanied  by  words  of  contumely  and  abuse,  the  jury 
are  warranted  in  taking  that  into  consideration,  and  giving  retributory  dam- 
ages. 

Per  Byles,  J.,  in  Bell  v.  Midland  Rail  Co.,  10  C.  B.  N.  S.  at  p. 

308. 
And  see  Dodson  v.  Oieen,  4  Times  L.  R.  ante,  p.  262. 
Blagg  v.  Sturt,  10  Q.  B.  899  ;  16  L.  J.  Q.  B.  39  ;  11  Jur.  101  ;  8L. 

T.  (Old  S.)  135. 
Merest  v.  Harvey,  5  Taunt.  432,  ante,  p.  615. 
The  defendant's  conduct  of  his  case,  even  the  language  used  by  his  counsel  at 
the  trial  may  aggravate  the  darnages. 

Per  Pollock,  C.  B.,  Darby  v.  Ouselei/,  25  L.  J.,  Ex.  230,  233. 
Blake  v.  Stevens  and  others,  4  F.  &  F.  235  -,  11  L.  T.  543. 
Risk  Allah  Bey  v.   Whitehurst,  18  L.  T.  615. 
So  a  plea  of  justification,  if  persisted  in,  but  not  proved,  will  enhance  the 
damages. 

Warwick  v.  Foulks,  12  M.  &  W.  508. 

Wilson  v.  Robinson,  7  Q.  B.  68  ;  14  L.  J.  Q.  B.  196  ;  9  Jur.  726. 
Simpson  v.  Robinson,  12  Q.    B.  511  ;  18  L.  J.   Q.  B.  73  ;  13  Jur. 
187. 

[*3ii]      y — Evidence  for  the  Defendant  in  Mitigation  of 

Damages. 

(i.)  Evidence  falling  short  of  a  justification. 

The  defendant  may  also  urge  upon  the  jury  any  material  cir- 
cumstance which  he  thinks  will  tend  to  mitigate  the  damages  against 
him. 

But  this  is  of  course  subject  to  the  general  rule  that  circum- 
stances, which,  if  pleaded,  would  have  been  a  bar  to  the  action,  can- 
not be  given  in  evidence  in  mitigation  of  damages,  (fyeck  v. 
Phillips^h  M.  &  W.  279  ;  8  L.  J.  Ex.  277  ;  7  Dowl.  470.)  Evi- 
dence of  the  truth  of  the  slander  or  libel  is  therefore  inadmissible, 

(305) 


234  DAMAGES. 

unless  a  justification  is  pleaded.  (  Underwood  v.  Parks,  2  Strange, 
1200  ;  Smith  v.  Richardson,  Willes,  -JO.)  And  where  the  words 
are  capable  of  two  meanings,  one  innocent,  the  other  harmful,  no 
evidence  can  be  given  in  mitigation  of  damages  that  in  the  innocent 
sense  the  words  are  literally  true  without  an  express  plea  to  that 
effect.  {Rumseij  v.  Webb  et  ux.,  Car.  &  M.  104  ;  11  L.  J.  C.  P.  129.) 
A  fortiori,  evidence  that  there  was  a  wide-spread  report  or  rumour 
to  the  same  effect  as  the  words  complained  of  is  inadmissible  ;  for 
it  clearly  falls  short  of  a  justification,  and  is  moreover  objectionable 
as  hearsav.  {Scott  v.  Sampson,  8  Q.  B.  D.  491  ;  51  L.  J.  Q.  B. 
380  ;  30  W.  R.  541  ;  46  L.  T.  412  ;  46  J.  P.  408.)  But  a  defend- 
ant may,  if  he  place  a  proper  plea  on  the  record,  give  evidence  in 
mitigation  of  damages  that  a  certain  specified  portion  of  the  defam- 
atory words  is  true,  provided  such  portion  conveys  a  distinct  impu- 
tation on  the  plaintiff  and  is  divisible  from  the  rest  and  yet  intelli- 
gible bv  itself.  (WGregor  v.  Gregory,  1 1  M.  &  W.  287;  12  L.  J. 
Ex.  204  ;  2  Dowl.  K  S.  769  ;  Lord  Churchill  v.  Hunt,  2  B.  &  Aid. 
685  ;  1  Chit.  480  ;  Clarke  v.  Taylor  and  another,  2  Bing.  N.C.  654  ; 
3  Scott,  95  ;  2  Hodges,  65.)  But  the  plea  must  cleaidy  specify  the 
precise  portions  justified.  (Stiles  v.  JVokes,  7  [*313]  East,  493.)  And 
without  a  special  plea,  evidence  that  part  of  the  libel  is  true  cannot 
be  received.     (  Vessey  v.  Pike,  3  C.  &  P.  512.) 

(ii.)     Previous  publications  by  others. 

Evidence  of  previous  publications  by  others  is  clearly  inadmis- 
sible even  in  mitigation  of  damages;  that  others  besides  the  defend- 
ant have  defamed  the  plaintiff  is  a  wholly  irrelevant  fact.  (  Tucker, 
v.  Laioson,  2  Times  L.  R.  593.)  And  so  is  the  fact  that  on  such 
former  occasions  the  plaintiff  did  not  sue  the  publisher  or  take  any 
steps  to  contradict  the  charges  made  against  him.     (P.  v.  Newman, 

1  E.  &  B.  268;  21  L.  J.  Q.  B.  156;  3  C.  &  K.  252;  P.  v.  Holt,  5  T. 
R.  436;  Ingram  v.  Lawson,  9  C.  &  P.  333;  Pankhurst  v.  Hamilton, 

2  Times  L.  R.  682.)  And  even  when  the  falsehood  thus  unchallenged 
grows  to  a  persistent  rumour  or  general  report,  which  the  defendant 
hears,  believes,  and  repeats;  this  is  not  regarded  inlaw  as  a  mitigat- 
ing circumstance.  Evidence  of  any  such  rumour  is  altogether  inad- 
missible. (Scott  v.  Sampson,  8  Q.  B.  D.  491;  51  L.  J.  Q.  B.  380; 
30  W.  R.  541;  46  L.  T.  412;  46  J.  P.  408.) 

There  is  one  exception:  if  defendant  in  repeating  the  story  as  it 
reached  him  gives  it  as  hearsay,  and  states  the  source  of  his  infor- 
mation, then,  but  only  then,  is  the  fact  that  he  did  not  originate 
the  falsehood,  but  innocently  repeated  it,  allowed  to  tell  in  his 
favour,  as  proving  that  he  bore  the  plaintiff  no  malice.  Thus, 
where  it  appears  on  the  face  of  a  libel  that  it  is  founded  on  a  state- 
ment in  a  certain  newspaper,  the  defendant  is  entitled  to  show  that 
he  did  in  fact  read  such  statement  in  the  newspaper  and  wrote  the 
libel  believing  such  statement  to  be  true.  (P.  v.  Purdett,  4  B.  &  Aid. 
95 ;  Mullett  v.  Hulton,  4  Esp.  248 ;  Hint  v.  Algar,  6  C.  &  P.  245.)  So,  if 
the  defendant  has  named  A.  as  his  informant,  he  may  prove  in  miti- 
gation that  he  did  in  fact  receive  such  information  from  A.,  though 

(300) 


EVIDENCE    IN    MITIGATION.  235 

of  course  this  is  no  defence  to  the  action  ;  [*314]  (ante,  p.  162.) 
(Be)tnett  v.  Bennett,  6  C.  &  P.  588;  Mills  and  wife  v.  Spencer  and 
wile  (1817),  Holt,  N.  P.  533;  East  v.  Chapman,  M.  &  M.  t6;  2  C. 
&  P.  570;  Buncombe  v.  Baniell,  2  Jur.  32;  8  ('.  &  P.  222;  1  W. 
W.  &  II.  101;  cited  7  Dowl.  472;  Davis  v.  Cutbush  and  others,  l 
F.  &  F.  487.)  But  where  the  libel  does  not,  on  the  face  of  it,  pur- 
port to  be  derived  from  any  one,  but  is  stated  as  of  the  writer's 
own  knowledge,  there  evidence  is  wholly  inadmissible  to  show  that 
it  was  copiedfrom  a  newspaper  or  communicated  by  a  correspond- 
ent, ('talbvtt  v.  Clark  and  another,2Moo.  &  Rob.  312.)  But  still 
if  the  defendant  can  show  that  in  copying  the  libel  from  another 
newspaper,  he  was  careful  to  omit  certain  passages  which  reflected 
strongly  on  the  plaintiff,  his  conduct  in  making  such  omissions  is 
admissible  as  showing  the  absence  of  all  animus  against  the  plaintiff, 
and  this  necessarily  involves  the  admissibility  of  the  original  libel 
copied.  (Creevy  v.  Carr,  7  C.  &  P.  64;  Creightcm  v.  Finlay,  Arm. 
Mac.  &  Ogle  (Ir.)  385.)  And  see  Be  Bensaude  v.  Conservative 
Newspaper  Co.,  3  Times  L.  R.  538. 

Illustrations. 

Mrs.  Evans  told  Mrs.  Spencer  that  she  was  going  to  Mrs.  Mills'  house  to  learn 
dressmaking  ;  Mrs.  Spencer  thereupon  told  Mrs.  Evansa  few  things  about  Mrs. 
Mills,  which  she  said  Mrs.  Lewis  and  Mrs.  Sayer  had  told  her.  Gibbs,  C.  J.. 
would  have  admitted  evidence  apparently  that  these  ladies  had,  in  fact,  told 
Mrs.  Spencer  what  she  told  Mrs.  Evans  :  but  it  turned  out  it  was  somebody  else 
who  had  said  so,  and  not  the  two  ladies  whom  she  named  as  her  authorities. 
Evidence  of  what  was  said  by  these  third  persons,  who  were  not  named  by  Mrs. 
Spencer  when  she  uttered  the  words  complained  of,  was  excluded. 
Mills  and  wife  v.  Spencer  and  wife.  Holt,  N.  P.  533. 
On  the  day  of  the  nomination  of  candidates  for  the  representation  of  the 
borough  of  Finsbury,  the  defendant  published  in  the  Morning  Post  certain  facts 
discreditable  to  one  of  the  candidates,  the  plaintiff,  which  he  alleged  he  had 
heard  from  one  Wilkinson  at  a  meeting  of  the  electors.  Held,  that  Wilkinson 
was  an  admissible  witness  to  prove,  in  mitigation  of  damages,  that  he  did,  in 
fact,  make  the  statement  which  the  defendant  had  published  at  the  time  and 
place  alleged. 

Buncombe  v.  Baniell,  2  Jur.  32;  8  C.  &  P.  222;  1  W.  W.  &  H.  101. 
The  Observer  published  an  inaccurate  report  of  the  trial  of  action  brought 
against  the  plaintiff.     Defendant  copied  this  report  verbatim  into  his  paper. 
[*315]  Held,  that  evidence  that  many  other  papers  beside  the  defendant's  had 
also  copied  the  statement  from  the  Observer  was  inadmissible. 
Saunders  v.  Mills,  6  Bing.  213 ;  3  M.  &  P.  520. 
Tucker  v.  Lawson,  2  Times  L.  R.  593. 
Evidence  that  defendant  had  copied  it  from  the  Observer  into  his  own  paper 
had  been  admitted  apparently  without  question  at  the  trial  ;    but  in   allowing 
that  evidence,  Tindal,  C.  J.,  says  (6  Bing.  220) :  "  It  appeared  to  me  I  had  gone 
the  full  length."     In  Talbuttv.  Clark  (2  Moo.  &  Rob.  312),  Lord  Denman  says, 
referrins;,  no  doubt,  to  Saunders  v.  Mills:      "I   know   that  in  a  case  in  the 
Common  Pleas  it  has  been  held  that  a  previous  statement  in  another  newspaper 
is  admissible  ;  but  even  that  decision  had  been  very  much  questioned." 

One  officer  charged  another  with  stealing  ;v  watch  ;  a  third  officer  in  the  same 
regiment  was  called  to  state  that  he  had  "previously  heard  rumours  that  the 
plaintiff  had  stolen  that  watch,  but  his  evidence  was  rejected  ;    and  the  Court 
held  that  such  rejection  was  right  (Pigot,  C.  B.,  dissenting). 
Bell  v.  Parke  (1860),  11  Ir.  C.  L.  R.  413. 
Kelly,  C.  B.  is  reported  to  have  aiven  a  similar  riding  in 

Bobede  v.  Fisher,  Times  for  July  29th,  1880. 
It  is  now  clearly  settled  that  evidence  of  such  rumours  is  inadmissible. 

(307) 


236  DAMAGES. 

Scott  v.    Sampson,  8  Q.  B.  D.  491  ;    51  L.  J.  Q.  B.  380 ;    30  W.  R. 

541  ;  46  L.  T.  412  ;  46  J.  P.  408. 
Wilson  v.  mtch,  41  Cal.  363. 
But  where  a  libel  on  the  plaintiff,  who  was  Surveyor-General  of  Upper 
Canada,  was  contained  in  a  pamphlet  which  was  not  generally  circulated, 
copies  being  senl  only  to  the  principal  civil  officers  of  the  province,  one  of 
whom  was  called  as  a  witness  by  the  plaintiff,  Gibbs,  C.  J.,  allowed  defendant's 
counsel  to  ask  the  witness,  whether,  previous  to  the  delivery  of  this  pamphlet, 
he  did  not  read,  in  a  public  newspaper,  the  substance  of  the  libel  charged  in 
the  declaration.  Such  cross-examination  appears  to  be  still  permissible  in 
mitigation  of  damages  ;  as  showing  that  it  was  the  former  publication  in  the 
newspaper,  and  not  the  subsequent  publication  of  the  pamphlet  which  injured 
plaintiff's  reputation  ;  and  see  post,  p.  327  ;  although  the  pamphlet  did  not 
profess  to  be  founded  on  the  newspaper. 

Wyatt  v.  Gore,  Holt,  N.  P.  299,  304. 

(iii.)  Liability  of  others. 

If  the  present  defendant  is  liable,  the  fact  that  some  one  else  is 
also  liable  is  immaterial.  It  will  not  diminish  the  amount  recover- 
able from  the  present  defendant,  to  show  that  the  plaintiff  has 
recovered,  or  might  recover,  other  damage  from  others.  For  each 
defendant  in  his  turn  pays  damages  for  the  injury  which  he  himself 
has  occasioned,  not  for  the  injury  done  by  others. 

Thus,  in  cases  of  slander,  the  defendant  is  only  liable  for  such 
[*316]  damages  as  result  directly  from  his  own  utterance.  If  defend- 
ant chooses  to  repeat  what  another  has  said,  that  is  his  own  conscious 
and  voluntary  act,  for  the  results  of  which  he  alone  is  responsible. 
So  defendant  is  not  liable  for  the  consequences  of  any  repetition  of 
his  words  by  others.  (See  post,  p.  331.)  So  if  two  newspapers  have 
made  each  a  distinct  charge  against  the  plaintiff,  and  subsequently 
the  plaintiff  finds  his  business'falling  off,  whichever  paper  he  sues 
may  endeavor  to  show  that  the  loss  of  trade  is  due,  or  partly  due,  to 
the  charge  made  against  the  plaintiff  by  the  other  paper.  So  if  there 
are  two  distinct  and  separate  publications  of  the  same  libel,  a  defend- 
ant who  was  concerned  in  the  first  publication,  but  wholly  uncon- 
nected with  the  second,  will  not  be  liable  for  any  damages  which  he 
can  prove  to  have  been  the  consequence  of  the  second  publication 
and  in  no  way  due  to  the  first.  Hence  evidence  that  plaintiff  has 
already  sued  those  who  were  liable  for  the  second  publication,  and 
recovered  damages  therefor,  is  inadmissible  in  an  action  brought 
against  defendant  on  the  first  publication.  (Creevy  v.  Carr,  7  C. 
&P.  64;  Frescoe  v.  May,  2  F.  &  F.  123.)  So  is  evidence  that 
other  actions  are  pending  against  other  persons  for  other  publications 
of  the  same  libel.  (Harr'isoh  v.  Pearce,  1  F.  &  F.  567  ;  32  L.  T. 
(Old  S.)  298.)  . 

But  where  there  is  only  one  publication,  every  one  concerned  in 
it  is  equally  liable  for  all  consequent  damage.  Hence  the  plaintiff 
can  only  "bring  one  action  ;  he  cannot  recover  twic-eover  from 
different  defendants  the  same  damages  for  the  same  injury.  lie 
may  sue  one  or  more  or  all  of  the  joint  publishers  in  his  one  action, 
at  his  election.  Thus,  if  the  libel  appeared  in  a  newspaper,  the 
person  libelled  may  sue  either  the  proprietor  or  the  editor,  or  the 

(308) 


ABSENCE    OF    MALICE.  237 

printer,  or  any  two,  or  all  three  of  them.  If  he  only  sue  otic  of 
many  persons  liable,  it  is  no  defence  that  others  are  jointly   Liable 

with  that  one  ;  for  all  parties  concerned  in  a  common  wrongful  act 
are  jointly  and  severally  liable.  {Post,  )>.  516.)  But  as  soon  as 
the  plaintiff  recovers  judgment  in  the  first,  action,  every  one  who 
is  jointly  liable  with  the  actual  defendant  is  released.  No  second 
action  can  be  brought  on  that  publication  against  any  one  who 
might  have  been  sued  in  the  first  action.  (Brown  v.  Wootton,  Cro. 
Jac.  73  ;  Yelv.  67  ;  Moo.  762  ;  JJuke  of  Brunswick  v.  Pepper,  2 
C.  &  K.  683  ;  Brinsmead  v.  Harrison,  L.  R.  7  C.  P.  547  ;  41  L.  J. 
C.  P.  190  ;  20  W.  R.  784  ;  27  L.  T.  99.)  Even  though  the  plaintiff 
was  not  then  aware  that  such  other  person  was  liable.  (Minister  v. 
Cox,  1  Times  L.  R.  542.) 

And  there  is  no  contribution  between  tort-feasors.  So  that  the 
proprietor  of  a  paper  cannot  compel  his  careless  editor  to  recoup  him 
the  damages,  which  he  has  been  compelled  to  pay  the  plaintiff. 
[*317]  (Colburn  v.  Patmore,  1  C.  M.  &  R.  73  ;  4  Tyr.  077  ;  3Ios- 
cati  v.  Laioson,  7  C.  &  P.  at  p.  35.) 

(iv.)  Absence  of  Malice. 

As  a  rule,  unless  the  occasion  be  privileged,  the  motive  or  inten- 
tion of  the  speaker  or  writer  is  immaterial  to  the  right  of  action  :  the 
Court  looks  only  at  the  words  employed  and  their  effect  on  the 
plaintiff's  reputation.  But  in  all  cases,  the  absence  of  malice,  though 
it  may  not  be  a  bar  to  the  action,  may  yet  have  a  material  effect  in  re- 
ducing the  damages.  The  plaintiff  is  still  entitled  to  reasonable 
compensation  for  the  injury  he  has  suffered  ;  but  if  the  injury 
was  unintentional,  or  was  committed  under  a  sense  of  duty,  or 
through  some  honest  mistake,  clearly  no  vindictive  damages 
should  be  given.  In  every  case,  therefore,  the  defendant  may, 
in  mitigation  of  damages,  give  evidence  to  show  that  he  acted 
in  good  faith  and  with  honesty  of  purpose,  and  not  maliciously. 
{Pearson  v.  Lemaitre,  5  M.  &  Gr.  700  ;  12  L.  J.  Q.  B.  253  ;  6  Scott, 
N.  R.  607  ;  7  Jur.  748  ;  7  J.  P.  336.)  He  may  show  that  the 
remainder  of  the  libel  not  set  out  on  the  record  modifies  the 
words  sued  on  ;  or  that  other  passages  in  the  same  publication 
qualify  them.  But  he  may  not  put  in  passages  contained  in  a  sub- 
sequent and  distinct  publication,  unless  the  words  sued  on  are  equiv- 
ocal or  ambiguous.  (Cooke  v.  Hughes,  R.  &  M.  112  ;  Darby  v. 
Ouseley,  1  H.  &  N.  1  ;  25  L.  J.  Ex.  227  ;  2  Jur.  N.  S.  497.)  The 
fact  that  the  defendant  did  not  originate  the  calumny,  but  innocently 
repeated  it,  is  admissible  if  he  gave  it  as  hearsay  and  named  his 
authority  when  he  repeated  it,  but  not  otherwise,  as  we  have  seen, 
ante,  p.  313.  The  defendant  may  also  urge- that  plaintiff's  conduct 
was  such  as  would  naturally  lead  the  defendant  to  put  the  worst  con- 
struction on  his  acts  ;  or  that  in  any  other  way  the  plaintiff  had,  by 
his  conduct,  brought  the  libel  on  himself.  So  defendant's  subsequent 
conduct  may  mitigate  [*318]  the  damages,  e.  g.,  if  he  showed  himself 
open  to    argument,  listened  to  the   explanations  that  were  offered 

i3i9i 


238  DAMAGES. 

him,  stopped  the  sale  of  the  libel  as  soon  as  complaint  reached  him, 
&c,  &c. 

In  some  cases,  as  we  have  seen,  the  plaintiff's  conduct  towards  the 
defendant  may  be  a  bar  to  the  action  ;  as  where  the  plaintiff,  by  at- 
tacking the  defendant,  liad  provoked  a  reply  which  is  made  honestly 
in  self-defence.  (See  ante,  p.  232.)  But  where  the  tacts  do  not 
amount  to  such  a  defence,  they  may  still  tend  to  mitigate  the  dam- 
ages. "  There  can  be  no  set-off  of  one  libel  or  misconduct  against 
another  ;  but  in  estimating  the  compensation  for  the  plaintiff's  in- 
jured feelings,  the  jury  might  fairly  consider  the  plaintiff's  conduct, 
and  the  degree  of  respect  he  has  shown  for  the  feelings  of  others." 
(Per  Blackburn,  J.,  in  Kelly  v.  Sherlock,  L.  R.  1  Q.  B.  698  ;  35  L. 
J.  Q.  B.  213  ;  12  Jur.  N.  S.  937.)  Thus,  evidence  is  admissible  in 
mitigation  of  damages  to  show  that  plaintiff  had  previously  himself 
libelled  or  slandered  the  defendant,  provided  it  be  also  shown  that 
this  had  come  to  the  defendant's  knowledge  and  occasioned  his  attack 
on  the  plaintiff.  (Finnerty  v.  Tipper,  2  Camp.  76  ;  Antony  Pas- 
quirts  case,  cited  1  Camp.  351  ;  Tarpley  v.  Blabey,  2  Bing.  N.  C. 
437  ;  2  Scott,  642  ;  7  C.  &  P.  395  ;  Watts  v.  Fraser,  7  A.  &  E.  223  ; 
7  C.  &  P.  369  ;  1  M.  &  Rob.  449  ;  2  N.  &  P.  157  ;  WaJdey  v. 
Johnson,  Ry.  &  M.  422.)  But  not  if  such  previous  libels  refer  to 
other  matters  and  did  not  provoke  that  sued  on.  ( May  v.  Brown, 
3  B.  &  C.  113  ;  4  D.  &  R.  670  ;  Sheffill  v.  Van  Beusen,  15  Gray, 
485.)  The  defendant  may  not  branch  out  into  irrelevant  matters  in 
his  evidence  ;  he  may  cross-examine  plaintiff  thereon  ;  but  if  he 
does,  he  must  take  plaintiff's  answer  ;  he  cannot  call  evidence  to 
contradict  it. 

Where  no  justification  is  pleaded,  the  defendant  will  not  be  entitled 
on  the  trial  to  give  evidence  in  chief,  with  a  view  to  mitigation  of 
damages,  as  to  the  cirenmstances  under  which  the  libel  or  slander 
was  published,  or  as  to  the  character  of  the  plaintiff,  without  the 
leave  of  [*319j  the  judge,  unless  seven  clays  at  least  before  the  trial 
he  furnishes  particulars  to  the  plaintiff  of  the  matters  as  to  which 
he  intends  to  give  evidence.     (Order  XXXVI.  r.  37.) 

The  previous  libels  and  slanders  may  be  made  the  matter  of  a 
counter-claim,  even  though  not  immediately  connected  with  the 
words  on  which  plaintiff  is  suing  ;  and  the  defendant  may  thus  not 
only  reduce  the  amount  of  damages  due  to  the  plaintiff,  but  even 
overtop  the  plaintiff's  claim,  and  recover  judgment»for  the  balance. 
(Quin  v.  Jlession,  40  L.  T.  70  ;  4  L.  R.  It.  35.)  And  where  there 
is  no  counter-claim,  the  previous  conduct  of  the  plaintiff  may  be 
ground  for  applying  to  the  judge  to  deprive  him  of  costs.  In  Har- 
nett v.  Vise  and  wife,  5  Ex.  D.  307  ;  29  W.  R.  7,  Huddleston,  B., 
deprived  a  plaintiff  of  his  costs  on  this  ground,  although  the  jury 
found  that  the  plea  of  justification  was  not  proved,  and  had  given 
him  damages  £10.  And  this  decision  of  the  learned  baron  was 
upheld  both  in  the  Exchequer  Division  and  in  the  Court  of  Appeal. 

A  libel  by  A.  on  B.  is  no  justification  for  an  assault  by  B.  on  A., 
though  if  A.  sue  for  the  assault,  B.  may  give  the  libel  in  evidence 
to   show  provocation,  and   thus  reduce   the  damages.     (Fraser  v. 

(310) 


plaintiff's  bad  chaeactee.  239 

Berkeley,  1  C.  &  P.  621  ;  2  M.  &  R.  3  ;  Kelser  v.  Smith,  46  Amor. 

Rep.  342.) 

Illustrations. 

The  defendant  published  an  inaccurate  report  of  proceedings  in  a  court  of 
Justice,  reflecting  on  the  character  of  the  plaintiff;  any  evidence  to  show  that 
the  defendant  honestly  intended  to  present  a  fair  accounl  of  what  took  place, 
and  had  blundered  through  inadvertence  solely,  was  held  admissible  by  Cole- 
ridge, J.,  in 

Smith  v.  Scott,  2  Car.  &  Kir.  580. 
And.  therefore,  evidence  of  what  really  did  take  place  at    the  trial  is  admis 
sible  ;  though  no  evidence  can  be  given  of  the  truth  or  falsehood  of  the  state 
ments  there  made. 

East  v.  Chapman,  M.  &  M.  46  ;  2  C.  &  P.  570. 

Vmey  v.  Pike,  3  C.  &  P.  512. 

Charlton  v.  Watton,  6  C.  &  P.  385. 
Where  a  newspaper  republished  the  report  of  a  company  containing  reflec- 
tions on  the  plaintiff,  their  manager,  Wightman,  J.,  directed  the  jury  that  if 
they  were  satisfied  such  publication  was  made  innocently,  and  with  no  desire 
to  injure  the  plaintiff,  they  might  give  nominal  damages  only. 

Darts  v.  Cntlnish  and  others,  1  F.  &  F.  487. 
Where  an  editor  refused  to  disclose  the  name  of  his  correspondent  who  wrote 
the  libel,  but  offered  to  open  his  columns  to  the  plaintiff,  and  the  plaintiff 
accepted  this  offer  and  wrote  several  letters  which  defendants  published,  reply- 
ing to  the  charges  made  against  him  and  explaining  them  away,  Martin,  B., 
directed  the  jury  to  take  these  circumstances  into  their  consideration  in  favor 
of  the  defendants. 

Harle  v.  Catherall  and  others,  14  L.  T.  801. 

[*320]  (v.)  Evidence  of  the  plaintiff'' shad  character. 

One  way,  but  a  very  dangerous  one,  of  minimising  the  damages, 
is  to  show  that  the  plaintiff's  previous  character  was  so  notoriously 
bad  that  it  could  not  be  impaired  by  any  fresh  accusation,  even 
though  undeserved.  The  gist  of  the  action  is  the  injury  done  to 
the  plaintiff's  reputation  ;  and  if  the  plaintiff  had  no  reputation  to 
be  injured,  surely  he  cannot  be  entitled  to  more  than  nominal 
damages.  Hence  the  fact  that  plaintiff  had  a  general  bad  character 
before  the  date  of  the  libel  or  slander  may  be  given  in  evidence  in 
mitigation  of  damages.  But  the  defendant  may  not  go  into  par- 
ticular instances  ;  still  less  may  he  prove  the  existence  of  a  general 
report  that  the  plaintiff  had  actually  committed  the  particular 
offence  of  which  the  defendant  accused  him  or  any  similar  offence. 

If,  however,  the  plaintiff  goes  into  the  box,  he  can  of  course  be 
cross-examined  "  to  credit "  on  all  the  details  of  his  previous  life 
which  affect  his  credit  ;  but,  unless  such  details  are  material  to  the 
issue,  the  defendant  must  take  the  plaintiff's  answer,  and  cannot 
call  evidence  to  contradict  it. 

Evidence  as  to  plaintiff's  general  bad  character  will  not.  however, 
be  admissible  unless  it  be  shown  that  his  character  was  such  pre- 
viously to  the  alleged  slander  or  libel  ;  for  otherwise  his  evil  reputa- 
tion may  have  been  occasioned  by  the  defendant's  own  publication, 
which  would  rather  aggravate  than  diminish  the  damages.  ( Thomp- 
son v.  Nye,  16  Q.  B.  175  ;  20  L.  J.  Q.  B.  85  ;  15  Jur.  285.)  And 
now  by  Order  XXXVI.  r.  37,  a  defendant  who  has  not  justified  will 
not  be  entitled  on  the  trial  to  give  evidence  in  chief,  with  a  view  to 

^  (311) 


240  DAMAGES. 

mitigation  of  damages,  as  to  the  character  of  the  plaintiff,  without 
flhe  leave  of  the  judge,  unless  seven  days  at  least  before  the  trial  he 
furnishes  particulars  [*32lJ  to  the  plaintiff  of  the  matters  as  to 
which  he  intends  to  give  evidence. 

There  has  been  a  great  conflict  of  opinion  as  to  the  admissibility 
of  evidence  of  the  plaintiff's  general  bad  character,  and  of  rumours 
prejudicial  to  his  reputation  ;  but  the  law  on  the  point  has  now  been 
Anally  settled  by  the  decision  in  Scott  v.  Sampson,  supra.  It  is, 
therefore  no  longer  necessary  to  refer  in  detail  to  the  numerous 
scantily  reported^and  conflicting  rulings  on  the  point  at  Nisi  Prius, 
which  are  dealt  with  in  that  exhaustive  judgment.  The  following 
cases,  which  are  not  referred  to,  bear  out  the  decision  :  Woolmer  v. 
Latimer,  1  Jur.  119  ;  Mills  and  wife  v.  Spencer  and  wife,  Holt,  N. 
P.  533  ;  Rodriguez  v.  Tadmire,  2  Esp.  721.  The  Irish  case  Bell  v. 
Parke,  11  Ir.  C.  L.  R.  414,  is  consistent  with  Scott  v.  Sampson, 
except  in  one  point  :  the  Irish  judges  admitted  evidence  that  the 
plaintiff  had  certain  vicious  habits  which  would  lead  him  to  commit 
such  acts  as  that  ascribed  to  him  in  the  slander.  This  ruling  will 
not  be  followed  in  England. 

But  the  decision  in  "  Scott  v.  Sampson  does  not  appear  to  restrict 
in  any  way  the  defendant's  liberty  (or  licence)  of  cross-examination. 
Lord  Coleridge  did  not  exclude  any  question  put  by  defendant's 
counsel  to  any  witness  called  by  the  plaintiff.  Hence  I  apprehend 
that  Wyatt  v.  Gore,  Holt,  K  P.  299  ;  and  Snowdon  v.  Smith,  1 
M.  &  S.  286,  n.,  which  were  not  cited  in  Scott  v.  Sampson,  as  well 
as  JVewsam  v.  Carr,  2  Stark.  69,  which  is  referred  to,  are  still  good 
law.  I  do  not  think  these  are  to  be  considered  as  overruled  by 
Bracegirdle  v.  Bailey,  1  F.  &  F.  536,  as  in  that  case  the  plaintiff 
had  given  no  evidence  in  chief,  so  that  questions  merely  to  credit 
were" inadmissible,  and,  moreover,  the  question  rejected  tended  to 
show  that  the  libel  was  true,  and  no  justification  had  been  pleaded. 
(See  ante,  p.  312.)  Order  XXXVI.  r."  37,  is  also  confined  to  evidence 
tendered  by  the  defendant  in  chief. 

Illustrations. 

In  an  action  for  words  imputing  adultery  to  a  widow,  Holroyd,  J.  held  that  it 
was  competent  to  the  defendant  to  go  into  general  evidence  to  impeach  the  plain- 
tiff's character  for  chastity. 

Ellershaw  v.  Robinson  et  ux.  (1824),  2  Starkie  on  Libel,  2nd  cd.  p.  90. 
And  Lord  Tenterden  is  said  to  have  admitted  similar  evidence,  although  a 
justification  was  pleaded. 

Mawhy  v.  Barber  (1826),  2  Starkie  on  Evidence,  p.  470. 
And  see  Maynard  v.  Deardsley,  7  Wend.  560. 
When  such  general  evidence  has  been  given,  plaintiff's  counsel  may  go  into 
particular  instances  to  rebut  it. 

Rodriguez  v.  Tadmire,  2  Esp.  721. 

[*322]  (vi)  Absence  of  Special  Damage. 

When  any  special  damage  is  alleged,  the  o?iks  of  proving  it  lies 
of  course  on  the  plaintiff.  The  defendant  may  call  evidence  to  rebut 

(312j 


APOLOGY.  241 

the  plaintiff's  proof,  though  he  generally  prefers  to  rely  on  the  cross- 
examination  of  the  plaintiff's  witnesses,  lie  may  either  dispute  that 
the  special  damage  lias  occurred  at  all,  or  he  may  argue  as  a  matter 
of  law  that  it  is  too  remote  (see  post,  p.  325)  ;  or  he  may  call  evi- 
dence to  show  that  it,  was  not  the  consequence  of  the  defendant's 
words,  but  of  sOme  other  cause.  A  plaintiff  may  not  recover  the 
same  damages  for  the  same  injury  twice  from  t\v<>  differenl  defend- 
ants ;but  he  may  recover  from  two  different  defendants  damages 
proportioned  to  the  injury  each  has  occasioned.  (  Harrison  \ .  Pearce, 
1  F.  &  F.  567  ;  32  L.  T.  (Old  S.)  298  ;  Wyatt  v.  Gore,  Holt,  N.  1'. 
299,  ante,  p.  3  15.) 

(vii.)  Apology  and  Amends. 

By  Lord  Campbell's  Act  (6  &  7  Vict,  c.196),  s.  1,  it  is  enacted, 
"  that  in  any  action  for  defamation  it  shall  be  lawful  for  the  defend- 
ant (after  notice  in  writing  of  his  intention  so  to  do,  duly  given  to 
the  plaintiff  at  the  time  of  filing  or  delivering  the  plea  in  such  action) 
to  give  in  evidence,  in  mitigation  of  damages,  that  he  made  or  offered 
an  apology  to  the  plaintiff  for  such  defamation  before  the  commence- 
ment of  the  action,  or  as  soon  afterwards  as  he  had  an  opportunity 
of  doing  so,  in  case  the  action  shall  have  been  commenced  before 
there  was  on  opportunity  of  making  or  offering  such  apology." 

And  by  s.  2,  "that  in  an  action  for  a  libel  contained  in  any  pub- 
lic newspaper  or  other  periodical  publication,  it  shall  lie  competent 
to  the  defendant  to  plead  that  such  [*323]  libel  was  inserted  in 
such  newspaper  or  other  periodical  publication  without  actual  mal- 
ice, and  without  gi-oss  negligence,  and  that,  before  the  commence- 
ment of  the  action,  or  at  the  earliest  opportunity  afterwards,  he 
inserted  in  such  newspaper  or  other  periodical  publication  a  full 
apology  for  the  said  libel,  or  if  the  newspaper  or  periodical  publi- 
cation in  whioh  the  said  libel  appeared  should  be  ordinarily  pub- 
lished at  intervals  exceeding  one  week,  had  offered  to  publish  the 
said  apology  in  any  newspaper  or  periodical  publication  to  be 
selected  by  the  plaintiff  in  such  action  ;  .  .  .  .  and  that  to  such 
plea  to  such  action  it  shall  be  competent  to  the  plaintiff  to  reply 
generally,  denying  the  whole  of  such  plea."  (See  Chadwick  v. 
Herapath,  3  C.  B.  885  ;  16  L.  J.  C.  P.  104  ;  4  D.  &  L.  653.) 
Money  must  be  paid  into  Court  by  way  of  amends  at  the  time  any 
plea  under  s.  2,  is  delivered,  or  it  will  be  treated  as  a  nullity  (8  &  9 
Vict.  c.  75,  s.  2).  Hence  no  other  defence  denying  liability  can 
now  be  joined  with  such  a  plea.  (Order  XXII.  r.  1  ;  and  see 
O'Brien  v.  Clement,  3  D.  &  L.  676  ;  15  M.  &  W.  435  ;  15  L.  J. 
Ex.  285  ;  10  Jur.  395  ;  and  Barry  v.  JSP  Grath,\x.  R.  3  C.  L.  576.) 

There  is  a  difference  between  the  language  of  the  two  sections  as 
to  the  date  at  which  the  apology  must  appear  ;  but  they  both  mean 
the  same  thing.  It  will  not  be  sufficient  for  the  defendant  under 
sect.  2  to  plead  that  the  apology  was  inserted  "  at  the  earliest  oppor- 
tunity after"  the  commencement  of  the  action,  if  there  was  an 
opportunity  before.  (Per  Keating,  J.,  in  Ravenhill  v.  Upcott,  33 
J.  P.  299  f  and  see  Evening  News  v.  Tryon,  36  Amer.  R.  450.) 
16  LIS.  &  slan.  (313) 


242  DAMAGES. 

There  appears  to  be  no  English  decision  reported  as  to  what  is, 
and  what  is  not,  "gross  negligence  "  in  theconduct  of  a  newspaper. 

But  in  America  it  has  been  decided  that  the  jury  may  take  into 
consideration  the  hurry  necessarily  incident  to  the  preparation  and 
publication  of  a  daily  newspaper,  as  where  an  article  is  brought  in 
at  the  last  moment  before  going  to  press  (Scripps  v.  Reilly,  38 
Mich,  lo)  ;  but  that  the  excitement  of  an  election  is  no  mitigation. 
(Bearirk  v.    Wilcox,  81  111.  77.) 

[*324]  But  wholly  apart  from  these  sections,  a  defendant  may 
give  evidence  of  any  apology  or  other  amends  in  mitigation  of 
damages  ;  even  though  such  apology  was  not  made  "  at  the  earliest 
opportunity  after  the  commencement  of  the  action  "  (Smith  v.  Har- 
rison, 1  F.  &  F.  565).  Still  a  tardy  or  reluctant  apology  will  not 
avail  the  defendant  much.  A  retraction  should  be  made  as  pub- 
licly as  the  charge,  and  as  far  as  possible  to  the  same  persons  ;  and 
the  defendant  should  do  his  utmost  to  stop  the  further  sale  of  the 
libel.  The  sufficiency  or  insufficiency  of  an  apology  is  peculiarly  a 
question  for  the  jury.  (Risk  Allah  Bey  v.  Johnstone,  18  L.  T. 
620.)  But  a  statement  cannot  be  called  an  apology,  unless  it  both 
unreservedly  withdraws  all  imputation  and  expresses  regret  for 
having  made  it.  The  defendant  must  not  try  to  exculpate  himself 
or  justify  his  conduct  (see post,  p.  524). 

The  apology  should  be  full,  though  it  need  not  be  abject  ;  the 
defendant  is  not  bound  to  insert  an  apology  dictated  by  the  plain- 
tiff ;  but  it  must  be  such  as  an  impartial  person  would  consider 
reasonabl}r  satisfactory  under  all  the  circumstances  of  the  case. 
(Bisk  Allah  Bey  v.  Johnstone,  18  L.  T.  620.)  It  should  be  printed 
in  type  of  ordinary  size,  and  in  a  part  of  the  paper  where  it  will  be 
seen;  not  hidden  "away  among  the  advertisements  or  notices  to 
correspondents.  (La/one  v.  Smith,  3  II.  &  N.  735  ;  28  L.  J.  Ex. 
33  ;  4  Jur.  X.  S.  1064.) 

So,  too,  a  defendant  may  now,  with  or  without  any  apology,  pay 
money  into  Court  by  way  of  satisfaction  or  amends,  at  any  time 
between  service  of  the  writ  and  delivering  his  Defence,  or  by  leave 
of  a  master  at  chambers  at  any  later  time.  If  such  payment  be 
made  before  delivering  the  Defence,  he  should  at  once  give  the 
plaintiff  notice  that  he  has  paid  in  such  money  ;  and  in  any  case 
he  should  plead  the  fact  of  payment  into  Court  in  his  Defence. 
But  if  such  payment  into  Court  be  made,  no  other  defence  deny- 
ing liability  can  be  pleaded.     (Order  XXII.  r.  1.) 

t*325]  yi. — Remoteness  of    Damages.' 


special  damage  alleged  must  be    the  natural   and  probable 
of  the  defendant's  wrongful  conduct.     In  some  cases  it  can 


The 
result  ol 

be  shown  that  the  defendant  contemplated  and  desired  such  result 
at  the  time  of  publication  :  in  other  cases  the  result  is  so  clearly  the 
natural  and  necessary  consequence  of  the  libel  or  slander  that  it 
may  fairly  be  said  the  defendant  ought  to  have  contemplated  it, 
whether  in  fact  he  did  so  or  not.  But  where  the  damage  sustained 
by  the  plaintiff  is  neither  the  necessary  and  reasonable  result  of  the 

(314) 


REMOTENESS.  243 

defendant's  conduct,  nor  such  as  can  be  shown  to  have  been  in  the 
defendant's  contemplation  at  the  time,  there  the  damage  will  he 
held  too  remote.  Evidence  cannot  he  given  at  the  trial  of  any 
special  damage  which  would  nol  How  from  defendant's  words  in  the 
ordinary  course  of  things,  unless  there  are  special  circumstances  in 
the  case  which  show  that  the  defendant  intended  and  desired  that 
result.  It  is  not  enough  that  his  words  have  in  fact  produced  such 
damage,  unless  it  can  reasonably  he  presumed  that  the  defendant, 
when  he  uttered  the  words,  either  knew,  or  ought  to  have  known, 
that  such  damage  would  ensue. 

Illustrations. 

The  defendant  insinuated  thai  the  plaintiff  had  been  guilty  of  the  murder  of 
one  Daniel  Dolly  ;  Hie  plaintiff  thereupon  demanded  thai  an  inquesl  should  be 
taken  on  Dolly's  body,  and  incurred  expense  thereby.     Held  thai  such  expense 

was  recoverable  as  special  damage  ;  though  it  was  not  compulsory  on  the  plain- 
tiff to  have  an  inquest  held. 

Peake  v.  Oldham,  Gowp.  275  ;  2  W.  Bl.  960. 
"  Suppose  that  during  the  warof  1870.  an  Englishman  had  been  pointed  out 
to  a  Parisian  mob  as  a  German  spy,  and  thrown  by  them  into  the  Seine,  it  could 
not  be  contended  that  one  act  was  not  the  natural  and  necessary  consequence  of 
the  other." 

Mavne  on  Damages,  3rd  ed.  p  426  ;  4th  ed.  p.  454. 
[*328]  The  defendant  said  to  Mr.  Knight  of  his  wife  Mrs.  Knight,  "  Jane 
is  a  notorious  liar  ....  she  wasall  butseduced  by  a  Dr.  C,  of  Koseonnnon, 
and  I  advise  you,  if  C.  comes  to  Dublin,  not  to  permit  him  to  enter  your  place. 
.  .  .  She  is  an  infamous  wretch,  and  I  am  sorry  that  you  had  the  misfor- 
tune to  marry  her,  and  if  you  had  asked  my  advice  on  the  subject  I  would 
have  advised  you  not  to  marry  her."  Knight  thereupon  turned  his  wife  out  of 
the  house  and  sent  her  home'to  her  father,  and  refused  to  live  with  her  any 
longer.  Held  that  loss  of  consortium  of  the  husband  can  constitute  special 
damage;  but  that  in  this  case  the  husband's  conduct  was  nut  the  natural  or 
reasonable  consequence  of  defendant's  slander.  Secus,  had  the  words  imputed 
actual  adultery  since  the  marriage. 

Lynch  v.  Knight  and  wife,  9  H.  L.  C.  577  ;  8  Jur.  K  S.  724. 

Parkins  et  ux.  v.  Scott  et  uz.,  1  H.  &  C.  153  ;  31  L.  J.  Ex.  331  ;  8 
Jur.  N.  S.  593  ;  10  W.  R.  562  ;  6  L.  T.  394;  post,  p.  329. 
Where  the  libel  attacked  the  character  of  both  husband  and  wife  and  the 
declaration  alleged  that  the  wife  fell  ill  and  died  in  consequence  of  it,  evidence 
of  such  damage  was  excluded  in  an  action  brought  by  the  surviving  husband. 

Guy  v.  Gregory,  9  C.  &  P.  584. 
A  declaration  alleged  that  the  defendant  falsely  and  maliciously  spoke  of  the 
plaintiff,  a  working  stonemason,  "  He  was  the  ringleader  of  the  nine  hours' 
system,"  and  "He  has  ruined  the  town  by  bringing  about  the  nine  hours' 
system,"  and  "  He  has  stopped  several  good  jobs  from  being  carried  out,  by 
being  the  ringleader  of  the  system  at  Llanelly,"  whereby  the  plaintiff  was  pre- 
vented from  obtaining  employment  in  his  trade  at  Llanelly.  Held,  on  demur- 
rer, that  the  alleged  damage  was  not  the  natural  or  reasonable  consequence  of 
the  speaking  of  such  words,  and  that  the  action  could  not  be  sustained. 

Miller  v.  David,  L.  R.  9  C.  P.  118  ;  43  L.  J.  C.  P.  84  ;  22  W.   R. 
332  ;  30  L.  T.  58. 

The  special  damage  must  be  the  direct  result  of  the  defendant's 
words.  The  jury  may  not  take  into  their  consideration  any  damage 
which  is  produced  not  so  much  by  the  defendant's  words  as  by 
some  other  fact  or  circumstance  unconnected  with  the  defendant, 
such  as  the  spontaneous  resolution  of  a  third  person.     The  defend- 

(31 5j 


244  '  DAMAGES. 

ant's  words  must  at  all  events  be  the  'predominating  cause  of  the 

damage  assigned. 

Illustrations. 

The  defendant  slandered  the  plaintiff  to  his  master  B.  Subsequently  B.  dis- 
covered from  another  source  that  the  plaintiff's  former  master  had  dismissed  him 
for  misconduct.  Thereupon  15.  discharged  the  plaintiff  in  the  middle  of  the  term 
[*327]  for  which  he  had  engaged  his  services,  lhld  that  no  action  lay  against  the 
defendant  ;  for  his  words  alone  had  not  caused  B.  to  dismiss  the  plaintiff. 
Vicars  v.  Wilcox,  8  East,  1  ;  2  Sm.  L.  C.  553  (8th  ed.) 
As  explained  in  Lynch  v.  Knight  "//>/  /rife,  9  H.  L.  C.  590,  600. 

Bingham  caused  a  libel  on  plaintiff,  the  proprietor  of  a  newspaper,  to  be 
printed  by  Hinchcliffe  as  a  placard,  and  distributed  5,000  such  placards.  He 
also  put  the  same  libel  into  a  rival  newspaper,  the  defendant's,  as  an  advertise- 
ment. Plaintiff  sued  both  Bingham  and  Hinchcliffe  as  well  as  the  defendant, 
alleging  that  the  circulation  of  his  paper  had  greatly  declined.  The  action 
against  the  defendant  came  on  first,  and  his  counsel,  having  failed  to  prove  the 
justification  pleaded,  contended  that  the  decline  of  circulation  must  principally 
he  ascribed  to  the  5,000  placards,  not  to  the  advertisement.  Martin,  B.,  while 
admitting  that  defendant  was  not  liable  for  damage  caused  by  the  placards, 
ruled  that  it  lay  on  defendant  to  prove  that  the  damage  sustained  by  the  ) .Iain- 
tiff  was  in  fact  due  to  the  placard,  and  not  to  the  advertisement.  Verdict  for 
the  plaintiff,  £500.  In  the  action  against  Bingham  and  Hinchcliffe  plaintiff  re- 
covered only  40s.     The  £500  was  probably  due  to  the  justification  pleaded  and 

PT0V  Harrison  v.  Pearce,  1  F.  &  F.  567  ;  32  L.  T.  (Old  S.)  298. 
Wyatt  v.  Gore,  Holt,  N.  P.  299,  ante,  p.  315. 
The  plaintiff  alleged  that  certain  persons  would  have  recommended  him  to 
X.,  Y.,  and  Z.,  had  not  the  defendant  spoken  certain  defamatory  words  of  him  on 
the  Royal  Exchange,  and  that  X.,  Y.,  and  Z.  would,  on  the  recommendation  of 
those  persons,  have  taken  the  plaintiff  into  their  employment,  The  plaintiff 
claimed  damages  for  the  loss  of  the  employment.  Such  damage  was  held  too 
remote,  for  it  was  caused  by  the  non-recommendation,  not  by  the  defendant's 
words. 

Sterrv  v.  Foreman,  2  C.  &  P.  592. 

And  see  Iloey  v.  Felton,  11  C.  B.  N.  S.  142 :  31  L.  J.  C.  P.  105. 
In  an  action  of  slander  of  title  to  a  patent,  the  plaintiff  alleged  as  special 
damage  that  in  consequence  of  defendant's  opposition,  the  Solicitor-General 
refused  to  allow  the  letters-patent  to  be  granted  with  an  amended  title,  as  the 
plaintiff  desired.  Held  that  this  damage  was  too  remote,  being  the  act  of  the 
Solicitor-General  and  not  of  the  defendant, 

Haddon  v.  Lott,  15  C.  B.  411  ;  24  L.  J.  C.  P.  49. 
Kerr  v.  Sheddon,  4  C.  &  P.  528. 
Special  damage  alleged,  that  in  consequence  of  defendant's  words,  Butler 
would  not  deliver  some  barley  which  plaintiff  had  bought  of  him,  except  for  cash 
on  delivery.     Butler,  being  called,  admitted  in  cross-examination  that  he  should 
have  insisted   on  cash  on  delivery  anyhow,  even  if  defendant  had  never  said 
anything  at  all,  and  that  that  was  his  understanding  of  the  contract  between 
himself  and  the  plaintiff.     Held  no  special  damage. 
King  v.  Watts,  8C.&P.  614. 
The  plaintiff  was  a  candidate  for  membership  of  the  Reform  Club,  but  upon  a 
ballot  of  the  members  was  not  elected.     Subsequently  a  meeting  of  the  members 
was  called  to  consider  an  alteration  of  the  rules  regarding  the  election  of  mem- 
bers.    Before  the  day  fixed  for  the  meeting  the  defendant  spoke  certain  words 
Concerning  the  plaintiff,  which  "  induced  or  contributed  to  inducing  a  majority 
of  the  members  of  the  club  to  retain  the  regulations  under  which  the  plaintiff 
[*328]  had  been  rejected,  and  thereby  prevented  the  plaintiff  from  again  seek- 
ing to  be  elected  to  the  club."     Held  that  the  damage  alleged  was  not  pecuniary 
or  capable  of  being  estimated  in  money,  and  was  not  the  natural  and  probable 
consequence  of  1  he  defendant's  words. 

Chamberlain  v.  Boyd(C.  A.),  11  Q.B.D.407;  52  L.  J.  C.Q.B.277; 
31  W.  R-  572  ;  48  L.  T.  328  ;  47  J.  P.  372,  post,  p.  630. 
(310) 


REMOTENESS.  245 

The  act  of  a  third  party,  if  directly  caused  by  the  defendant's 
language,  is  not  too  remote,  provided  the  defendanl  either  <li<l  con- 
template or  ought  to  have  contemplated  such  ;i  result.  The  defend- 
ant cannot  be  held  liable  for  any  eccentric  or  foolish  conduct  on 
the  part  of  the  person  he  addressed  ;  bul  only  for  the  ordinary  and 
reasonable  consequences  of  his  words.  The  fact  that  such  act  is 
in  itself  ;i  ground  of  action  hy  the  plaintiff  againsl  such  third  party 
is  immaterial. 

Formerly  this  was  much  doubted.  It  washeld  in  Vicars  v.  Wilcox, 
8  East,  1  ;' 2  Sm.  L.  C.  553  (8th  edition),  that  where  the  plaintiff's 
master  was  induced  by  the  slander  to  dismiss  the  plaintiff  from  his 
employ  before  the  end  of  the  term  for  which  they  had  contract)  d, 
such  dismissal  was  too  remote  to  be  special  damage,  because  it  was 
a  mere  wrongful  act  of  the  master,  for  which  the  plaintiff  could  sue 
him.  The  same  doctrine  was  laid  down  in  Morris  v.  Langdale,  2 
B.  &  P.  284  ;  and  Kelly  v.  Partington,  5  B.  &  Ad.  645  ;  3  N.  &  M. 
116.  But  this  is  clearly  contrary  to  JJavis  v.  Gardiner,  4  Rep. 
16  ;  ante,  p.  299,  and  the  numerous  other  cases  in  which  loss  of  a 
marriage  was  held  to  constitute  special  damage,  although  the  plaintiff 
there  had  an  action  for  breach  of  promise  of  marriage.  Doubts  were 
thrown  on  Vicars  v.  Wilcox  in  Knir/ht  v.  Gibbs,  1  A.  &  E.  43  ; 
3  N.  &  M.  467  ;  and  in  Green  v.  Button,  2  C.  M.  &  R.  707  ;  and  it 
must  now  be  taken  to  have  been  overruled  by  the  dicta  of  the  law- 
lords  in  Lynch  v.  Knight  andwife,  9  H.  L.  C.  577,  and  by  the  decision 
in  Zwnleg'x.  Gye,  2  E.  &  B.  216  ;  22  L.  J.  Q.  B.  463  ;  17  Jur.  827. 
And  it  is  now,  I  think,  clear  law  that  defendant  is  liable  for  any 
illegal  act  which  it  was  his  obvious  intention,  or  the  natural  result 
of  his  words,  to  induce  another  to  commit.  "  To  make  the  words 
actionable  by  reason  of  special  damage,  the  consequence  must  be  such 
as,  taking  human  nature  as  it  is  with  its  infirmities,  and  having  regard 
to  the  relationship  of  the  parties  concerned,  might  fairly  and  reason- 
[*  329]  ably  have  been  anticipated  and  feared  would  follow  from 
the  speaking  of  the  words."  (Per  Lord  Wensleydale  in  Lynch  v. 
Knight  andwife,  9  H.  L.  C.  p.  600.)  "  If  the  experience  of  man- 
kind must  lead  any  one  to  expect  the  result,  the  defendant  will  he 
answerable  for  it.'*'  (Per  Littledale,  J.,  in  E.  v.  Moore,  3  B.  &  Ad. 
188.  And  see  Soci'ete  Franpaise  des  Asphaltes  v.  Farrell,  1  Cababe" 
&  Ellis,  563  ;  and  Carrol  v.  Falkiner,  Kerford  &  Box's  Digest  of 
Victoria  Cases,  216.) 

Illustrations. 

A  man  may  not  recover  the  same  damages  for  the  same  injury  twice  from  two 
different  defendants  ;  but  lie  may  recover  from  two  different  defendants  dam- 
ages proportioned  to  the  injury  each  has  occasioned,  and  clearly  where  words 
are  spoken  by  a  defendant  with  the  intent  to  make  a  third  person  break  hi-  eon- 
tract  with  the  plaintiff,  the  fact  that  such  person  did  break  his  contract  with  the 
plaintiff  in  consequence  of  what  the  defendant  said,  may  he  proved  as  special 
damage  against  that  defendant. 

Carrol  v.  Falkiner,  Kerford  &  Box's  Digest  of  Victoria  Cases,  216. 

If  I  tell  a  master  falsely  that  his  servant  has  robbed  trim  and  thereupon  he 
instantly  dismisses  him,  I  must  be  taken  to  have  contemplated  this  as  a  natural 
and  probable  consequence  of  my  act.     But  if  the  master  horsewhips  his  servant 

C317; 


246  DAMAGES. 

instead  of  dismissing  him,  this  is  not  the  natural  result  of  my  accusation  ;  I 
could  not  he  held  liable  for  the  assaidt  as  special  damage.  See  per  Williams, 
J.,  in 

Haddon  v.  Lott,  15  C.  B.  411  ;  24  L.  J.  C.  P.  50. 
Mrs.  Scott  charged  Mrs.  Parkins  with  adultery.     She  indignantly  told  her 
husband,  ami  lie  was  unreasonable  enough  to  insist  upon  a  separation  in  con- 
sequence.    Held,  that  no  action  lay. 

Parkins  et  ux.  v.  Scott  et  ux.,  1  H.  &  C.  153  ;  31  L.  J.  Ex.  331  ;   8 

Jur.  N.  S.  593  ;  10  W.  11.  562  ;  6  L.  T.  394  ;  2  F.  &  F.  799. 
Lynch  v.  Knight  and  wife,  9  H.  L.  C.  577  ;  5  L.  T.  291,  ante,  p. 
326. 
The  plaintiff  engaged  Mdlle.  Mara  to  sing  at  his  concerts  ;  the  defendant 
libelled  Mdlle.  Mara,  who  consequently  refused  to  sing  lest  she  should  he  hissed 
and  ill-treated  ;  the  result  was  that  the  concerts  were  more  thinly  attended  than 
they  otherwise  would  have  been,  whereby  the  plaintiff  lost  money      Held  that 
the  damage  to  the  plaintiff  was  too  remote  a  consequence  of  defendant's  words 
to  sustain  an  action  by  the  plaintiff.     It  was,  in  short,  not  so  much  the  result  of 
defendant's  words  as  of  Mdlle. Mara's  timidity  or  caprice. 
Ashley  v.  Harrison,  1  Esp.  48;  Pcake,  256. 
The  defendant  is  not  answerable  "if,  in  consequence  of  his  words,  other  per- 
sons had  afterwards  assembled  and  seized  the  plaintiff  and  thrown  him  into  a 
horse-pond  by  way  of  punishment  for  his  supposed  transgression." 

Per  Lord  Ellenborough,  C.  J.,  in  Vicars  v.  Wilcocks,  8  East,  3. 

It  is  not  essential  that  the  third  person,  whose  act  constitutes  the 
special  damage,  should  believe  the  Avords  [*  330]  spoken  by  the 
defendant,  if  it  is  shown  that  the  words  spoken  did  directly  induce 
the  act.    'The  law  is  otherwise  in  America. 

Illustrations. 

The  plaintiff  and  another  young  woman  worked  for  Mrs.  Enoch,  a  straw 
bonnet-maker,  and  lived  in  her  house.  The  defendant,  Mrs.  Enoch's  landlord, 
who  lived  two  doors  off,  came  to  Mrs.  Enoch  and  complained  that  the  plaintiff 
and  her  fellow-lodger  had  made  a  great  noise  and  been  guilty  of  openly  out- 
rageous conduct,  adding,  "  No  moral  person  would  like  to  have  such  people  in 
his  house."  Mrs.  Enoch  thereupon  turned  them  out  of  her  house,  and  dis- 
raissed  them  from  her  employ,  not  because  she  believed  the  charge,  made,  but 
because  she  was  afraid  it  wrould  offend  her  landlord  if  they  remained.  Held 
that  the  special  damage  was  the  direct  consequence  of  the  defendant's  words. 

Knight  v.  Gibbs,  1  A.  &  E.  43  ;  3  N.  &  M.  467. 

And  see  Qillett  v.  Bullimnt,  7  L.  T.  (Old  S.)  490  ;  post,  p.  333. 
But  where  the  plaintiff  was  under  twenty-one  and  lived  at  home  with  her 
father,  and  the  defendant  foully  slandered  "her  to  her  father,  in  consequence 
of  which  he  refused  to  give  her  a  silk  dress  and  a  course  of  music  lessons  on 
the  piano  which  he  had  promised  her,  although  he  entirely  disbelieved  the 
defendant's  story,  this  was  held  in  America  not  to  be  such  special  damage  as 
will  sustain  the  action,  on  the  ground  that  such  treatment  by  a  parent  of  his 
child  is  not  the  natural  result  of  a  falsehood  told  him  against  her.  Per  Grover, 
J.  :  "  I  do  not  think  special  damage  can  be  predicated  upon  the  act  of  any  one 
who  wholly  disbelieves  the  truth  of  the  story.  It  is  inducing  acts  injurious  to 
the  plaintiff,  caused  by  a  belief  of  the  truth  of  the  charge  made  by  the  defend- 
ant, that  constitutes  the  damage  which  the  law  redresses." 

Anon.,  60  N.  Y.  262. 

And  see  Wilson  v.  Goit,  17  N.  Y.  445. 

The  special  damage  must  be  the  direct  result  of  the  defendant's 
words,  not  of  some  one  else's.  If  A.  chooses  of  his  own  accord  to 
republish  the  defendant's  words,  this  is  A.'s  owai  act,  for  the  con- 
sequences of  which  he  alone  is  liable. 

(318) 


REPETITION".  •  247 

But  if  a  republication  by  A.  be  the  natural  or  necessary  conse- 
quence of  thf  defendant's  publication  to  A.,  or  if  the  defendant 
intended  Or  desired  A.  to  repeat  Ins  words,  the  defendant  is  liable 
for  all  the  consequences  of  A.'s  republication,  for  he  directly  caused 
it.  A  republication  by  A.  to  15.  is  not,  however,  considered  in  Eng- 
land  a  necessary  consequence  of  defendant's  publication  ;  unless  the 
original  [*  331]  communication  made  to  A.  places  A.  under  a  legal  or- 
moral  obligation  to  repeat  the  slander  to  15.  And,  indeed,  if  de- 
fendant knew  the  relation  in  which  A.  stood  to  15.,  be  will  he  taken 
to  have  maliciously  contemplated  and  desired  this  result  when  he 
spoke  to  A. 

Thus,  it  may  happen  that  a  person  who  invents  a  lie,  and  mali- 
ciously sets  it  in  circulation,  may  sometimes  escape  punishment 
altogether.  For  if  I  originate  a  slander  against  you  of  such  a 
nature  that  the  words  are  not  actionable  per  se,  the  utterance  of 
them  is  no  ground  of  action,  unless  special  damage  follows.  If  I 
myself  tell  the  story  to  your  employer,  who  thereupon  dismisses 
you,  you  have  an  action  against  me  ;  but  if  I  only  tell  it  to  your 
friends  and  relations,  and  no  pecuniary  damage  ensues  from  my 
own  communication  of  it  to  any  one,  then  no  action  lies  against 
me,  although  the  story  is  sure  to  get  round  to  your  master  sooner 
or  later.  The  unfortunate  man  whose  lips  actually  utter  the  slan- 
der to  your  master  is  the  only  person  that  can  be  made  defendant  ; 
for  it  is  his  publication  alone  which  is  actionable  as  causing  special 
damage. 

This  state  of  the  law  is  denounced  bv  Kelly,  C.  B.,  in  Biding  v. 
Smith,  1  Ex.  D.  94  ;  45  L.  J.  Ex.  281  ;  24  W.  R.  487  ;  34  L.  T. 
500.  It  might,  perhaps,  have  been  argued  formerly,  in  analogy  to 
the  principle  of  Scott  v.  Shepherd,  1  Sm.  L.  Cases  (8th  edi'u.),  466  ; 
2  Win.  Bl.  892  ;  3  Wils.  403,  that  he  who  invented  the  slander  and 
first  set  it  in  circulation,  is  as  liable  as  he  who  "gave  the  mischiev- 
ous faculty  to  the  squib"  and  first  started  it  on  its  wild  career 
across  the  market-house  at  Milborne  Port,  But  it  will  be  remem- 
bered that  the  decision  in  that  famous  case  turns  expressly  on  the 
assumption  that  Willis  and  Ryal  were  not  to  be  considered  free 
agents,  that  what  they  did  was  " by  necessity,"  was  "the  inevit- 
able consequence  of  the  defendant's  unlawful  act."  Had  they  been 
considered  as  free  agents  voluntarily  intervening,  the  other  judges 
would  have  agreed  with  Blackstone,  J.  On  principle,  therefore,  it 
is  clearly  good  law  to  hold  that  when  the  repetition  of  the  slander 
is  spontaneous  and  unauthorized,  when  it  is  the  voluntary  act  of  a 
free  agent,  the  originator  of  the  slander  is  not  answerable  for  any 
mischief  caused  by  such  repetition  :  and  this  principle  is  also  far 
too  strongly  established  by  authority  to  be  easily,  if  ever,  shaken. 
It  is  as  old  as  1600.  (Holwood  v.  Hopkins,  Cro.  Eliz.  7s7.  And 
see  Ward  v.  Weeks,  7  Bing.  211  ;  4  M.  &  P.  796  ;  Rutherford  v. 
Evans,  4  G.  &  P.  79  ;  Tunniditfe  v.  Moss,  3  C.  &  K.  83  ;  Parkins 
et  ux.  v.  Scott  et  ux.,  1  H.  &  C.  153  ;  31  L.  J.  Ex.  331  ;  [*  332]  8 
Jur.  N.  S.  593  ;  Dixon  v.  Smith,  5  II.  &  K  450  ;  29  L.  J.  Ex.  125  ; 
Bateman  v.  Lyall,  7  C.  B.  N.  S.  638.)     In  Biding  v.  Smith,  1  Ex. 

(319) 


248  DAMAGES. 

« 

D.  94  ;  45  L.  J.  Ex.  281  ;  24  W.  R.  487  ;  34  L.  T.  500,  it  is  true 
Kelly,  0.  B.,,  expresses  a  "  hope  that  the  day  will  come  when  the 
principle  of  Ward  v.  Weeks,  and  that  class  of  cases,  shall  be  brought 
under  the  consideration  of  the  Court  of  last  resort  ;"  but  Pollock 
and  Iluddleston,  BB.,  upheld  that  decision.  And  in  Clarke  v. 
Morgan,  38  L.  T.  354,  Lindley,  J.,  expressly  states  his  opinion  that 
the  decisions  in  Ward  v.  Weeks  and  Parkins  v.  Scott  have  been  in 
no  way  overruled  by  Hiding  v.  /Smith  and  Evans  v.  Harries,  20  L. 
J.  Ex.  31  ;   1  II.  &  N.  251. 

It  is  only  in  cases  where  the  words  are  not  actionable  per  se  that 
the  rule  as  to  the  remoteness  of  damages  inflicts  this  apparent  hard- 
ship upon  the  plaintiff;  for  where  the  words  are  actionable  />er  se, 
and  in  all  cases  of  libel,  the  jury  find  the  damages  general!;/,  and 
will  be  careful  to  punish  the  author  of  a  pernicious  falsehood  with 
all  due  severity  ;  although,  of  course,  the  judge  will  still  direct 
them  not  to  take  into  their  consideration  any  damage  which  ensued 
from  a  repetition  by  a  stranger.  {Rutherford  v.  Evans,  4  C.  &  P. 
79  ;   Turmlcllffe  v.  Moss,  3  C.  &  K.  83.) 

The  two  exceptions  set  out  on  p.  167,  ante,  are  only  apparent 
exceptions  to  the  general  rule.  For  whenever  the  first  publisher 
either  expressly  or  impliedly  requests  or  procures  the  republication, 
he  directly  causes  all  damage  that  flows  from  the  republication  ;  the 
second  publisher  is  really  his  agent,  for  wdiose  act  he  is  liable.  So, 
wherever  the  original  publication  to  A.  places  A.  under  a  legal  or 
moral  obligation  to  repeat  the  defendant's  words,  such  repetition 
is  clearly  the  natural  consequence  of  defendant's  communication 
to  A. 

In  America  the  judges  in  one  or  two  cases  appear  to  carry  this 
doctrine  further,  and  seem  to  lay  down  the  rule  that  wherever  the 
repetition  is  innocent  (that  is,  I  presume,  not  malicious,  and  on  a 
privileged  occasion),  the  originator  must  be  liable  for  all  conse- 
quential damage  caused  by  the  repetition  ;  for  else,  it  is  said,  the 
person  injured  would  be  without  a  remedy.  He  cannot  sue  the 
person  repeating  the  slander,  as  the  repetition  is  privileged  ;  there- 
fore he  must  be  able  to  sue  the  first  publisher  for  the  damage 
caused  by  his  own  publication,  and  by  the  innocent  repetition  as 
well.  "  Where  slanderous  words  are  repeated  innocently,  and 
without  an  intent. to  defame,  as  under  some  circumstances  they 
may  be,  I  do  not  see  why  the  author  of  the  slander  should  not  be 
held  liable  for  injuries  resulting  from  it  as  thus  repeated,  as  he 
would  be  if  these  injuries  had  arisen  directly  from  the  words  as 
spoken  by  himself."  (Per  Beardsley,  J.,  in  Kcenholts  v.  [*  333] 
Becker,  3  Denio,  N.  Y.  352  ;  and  see  Tervnlllger  v.  Wands,  17  N. 
Y.  58.)  But  it  is  strange  to  make  the  liability  of  one  man  depend 
on  the  absence  of  malice  in  another.  Such,  at  all  events,  is  not  the 
law  of  England  ;  it  by  no  means  follows  with  us  that  because  the 
repetition  is  privileged  or  innocent  it  is  therefore  the  natural  and 
necessary  consequence  of  the  prior  publication.  In  Parkinsy.  Scott 
the  repetition  was  clearly  innocent,  yet  no  action  lay  against  the 
original  defamer.  Mrs.  Parkins  was  in  fact  held  to  have  no  rem- 
edy.    (See  Clark  v.  Chambers,  3   Q.  B.  D.  327  ;    47  L.  Q.  B.  427  ; 

(320) 


REPETITION.  249 

26   W.  R.  613  ;    38  L.  T.  454  ;    Bassell  v.  Elmore,   48  N.  Y.  561, 
567  ;    Titus  v.  Sumner,  44  N.  Y.  266.) 

Illustrations. 

Plaintiff  "was  in  communication  of  marriage  with  J.  S.,  who  was  seised  in 

fee  of  land  worth  £200  per  annum."     Defendant  spoke  words  to  plaintiff's  ser- 
vant imputing  unchastity  to  the  plaintiff;  "and  by  reason  of  these  words  she 

lost  her  marriage."     Held  that  no  action  lay,  becau.se  the  words  were  not  spoken 
to  J.  S. 

Holwood  v.  Hopkins  (1(500),  Cro.  Eliz.  787. 
Weeks  was  speaking  to  Bryce  of  the  plaintiff,  and  said,  "  lie  is  a  rogue  and  a 
swindler;  I  know  enough  about  him  to  hang  him."  Bryce  repeated  this  to 
Bryer  as  Weeks'  statement.  Bryer  consequently  refused  to  trust  the  plaintiff. 
Held  that  the  judge  was  right  in  nonsuiting  the  plaintiff:  for  the  words  were 
not  actionable  per  se,  and  the  damage  was  too  remote. 

Ward  v.  Weeks,  7  Bin.--.  211  ;  4  M.  &  P.  790. 
A  groom  in  a  passion  called  a  lady's-maid  "a  whore."     A  lady,  hearing  the 
groom  had  said  so,  refused  to  afford  the  lady's-maid  her  customary  hospitality. 
Held  that  no  action  lay,  for  the  groom  had  never  spoken  to  the  lady. 
tlarke  v.  Morgan,  38  L.  T.  354. 

Dixon  v.  Smith,  5  H.  &  N.  450 ;  29  L.  J.  Ex.  125  ;  ante,  p.  305. 
Defendant  said  of  the  plaintiff,  a  veterinary  surgeon,  in  tin;  While  Lion  pub- 
licdiouse  at  Barnet,  "He  does  not  know  his  business.''  No  one  then  in  the 
publiediouse  ceased  to  employ  plaintiff  in  consequence  ;  but  some  others  did,  to 
whom  the  circumstance  was  reported.  Held  that  defendant  was  not  liable  for 
the  loss  of  their  custom. 

Hirst  v.  Goodwin,  3  F.  &  F.  257. 
Rutherford  v.  Evans,  4  C.  &  P.  74. 
Tunnicliffe  v.  Moss,  3  C.  &  K.  83. 
The  plaintiff  was  governess  to  Mr.  L.'s  children;  the  defendant  told  her  father 
that  she  had  had  a  child  by  Mr.  L.  :  the  father  went  straight  to  Mr.  L   and  told 
him  wdiat  defendant  had  said.     Mr.  L.  thereupon  said  that  the  plaintiff  had 
better  not  return  to  her  duties,  for  although  be  knew  that  the  charge  was  per- 
fectly false,  still  for  her  to  continue  to  attend  to  bis  children,  would  be  injurious 
to  her  character  and  unpleasant  to  them  both.     Held  that  the  repetition  by  the 
[*334]  father  to  Mr.  L.,  and  his  dismissal  of  the  plaintiff,  were  both  the  natural 
consequences  of  the  defendant's  publication  to  the  father. 
Gilli  tt  v.  Bullivant,  7  L.  T.  (Old  S.)  490. 
Fowles  v.  Bowen,  3  Tiff.  (30  N.  Y.)  20. 
H.   told  Mr.  Watkins  that  the  plaintiff,  his  wife's  dressmaker,  was  a  woman 
of  immoral  character.  Mr.  Watkins  naturally  informed  bis  wife  of  this  charge, 
and  she  ceased  to  employ  the  plaintiff.     Held  that  the  plaintiff's  loss  of  Mrs. 
Watkins'  custom  was  the  natural  and  necessary  consequence  of  the  defendant's 
communication  to  Mr.  Watkins. 

JJerry  v.  Handle.!/,  16  L.  T.  263. 
A  police  magistrate  dismissed  a  trumped-up  charge  brought  by  the  plaintiff, 
a  policeman,  and  added  :  "I  am  bound  so  say,  in  reference  to  this  charge  and  a 
similar  one  brought  from  the  same  spot  a  few  days  ago,  that  I  cannot  believe 
William  Kendillen  on  his  oath."  This  observation  was  duly  reported  to  the 
Commissioners  of  Police,  wdio  in  consequence  dismissed  the  plaintiff  from  the 
force.  Lord  Denman  held  that  the  dismissal  was  special  damage  for  which  the 
defendant  would  have  been  liable,  if  the  action  had  lain  at  all :  for  he  must 
have  known  that  such  a  remark  would  certainly  be  reported  to  the  commis- 
sioners, and  would  most  probably  cause  them  to  dismiss  the  plaintiff.  Nonsuit 
on  the  ground  of  privilege. 

Kendillon  v.  Maltby,  1  Car.  &  Marsh.  402. 
The  defendant,  a  passenger  on  board  a  steam-packet,  complained  to  the 
captain  that  the  plaintiff,  the  third  officer,  had  been  guilty  of  misconduct  towards 
one  of  the  lady  passengers.  On  the  arrival  of  the  vessel  at  Jamaica,  the  captain 
reported  this  charge  to  the  marine  superintendent  of  the  company  there,  who 
reported  it  to  the  directors  at  the  chief  office  of  the  company  in  London,  who 

(321) 


250  DAMAGES. 

dismissed  the  plaintiff  from  the  service  of  the  company.  The  plaintiff  sought 
leave  to  issue  a  writ  to  be  served  on  the  defendant,  who  resided  in  Jamaica. 
None  of  the  above  eases  were  cited  l<>  the  Court.  Leave  was  refused,  on  the 
ground  that  the  ease  did  not  come  within  the  words  of  the  repealed  rule, 
Order  XI.  r.  1  ;  hut  Bramwell,  L.  J.,  intimated  that  in  his  opinion  the  alleged 
special  damage  was  too  remote,  differing  from  Den  man,  J.,  in  I  lie  Court  below. 

Bra-  v.    Mnrext'uiu:  (C.  A.),  7  (.J.  B.  D,  434  ;  50  L.  J.  Q.  B.  676  ;  29 

W.  R.  858  ;  44  L.  T.  644,  705. 

If  I  make  an  oral  statement  to  the  reporter  of  a  newspaper,  intending  and 

desiring  him  to  inserl  the  substance  of  it  in  the  paper,  I  am  liable  lor  nil  the 

consequences  of  its  appearing  in  print,  although  I  never  expressly  requested  the 

reporter  to  publish  it. 

BoM  v.  Douglas,  7  C.  &  P.  626. 

It.  v.  Lovett,  <J  C.  &  P.  402. 

Adams  v.  Kelly,  Ry.  &  Moo.  157. 

R.  v.  Cooper,  8  Q.  B.  533  ;  15  L.  J.  Q.  B.  200. 
But  if  I  write  you  a  private  letter  containing  a  libel  on  A.,  and  you  make  a 
copy  of  it  which  you  send  to  a  newspaper  to  be  published  to  all  the  world,  with- 
out my  leave,  and  in  a  way  which  I  could  not  have  anticipated,  then  this 
republication  is  your  own  unlawful  act,  for  the  consequences  of  which  you  alone 
are  liable.     I  must  pay  damages  only  for  the  publication  to  you. 

Per  Best,  C.  J.,  5  Bing.  402,  405. 

[*325]  The  damage  must  of  course  have  accrued  to  the  plaintiff, 
and  not  to  some  one  else.  A  loss  which  has  resulted  to  A.  in  con- 
sequence of  the  defendant's  having  defamed  B.,  is  too  remote  to 
constitute  special  damage  in  any  action  brought  by  B.  Whether 
A.,  who  has  himself  suffered  the  damage,  can  sue,  depends  upon  the 
closeness  of  the  relationship  between  A.  and  B.  If  A.  is  l"s  master, 
A  may  perhaps  have  an  action  on  the  case  per  quod  servitium 
amisit.  If  A.  is  B.'s  husband,  then  it  is  clear  law  that  the  husband 
may  sue  for  any  special  damage  which  has  accrued  to  him  through 
the  defamation  of  his  wife,  {post,  p.  395).  But  a  wife  cannot  recover 
for  any  special  damage  which  words  spoken  of  her  have  inflicted  on 
her  husband.  (Harwood  et  ux.  v.  Ilardioick  et  ux.  (1G68),  2 
Keble,  387.) 

This  rule  presses  very  harshly  upon  married  women  ;  for  before 
the  Married  Women's  Property  Act  there  was  hardly  any  special 
damage  which  they  could  suffer.  Their  earnings  were  their 
husbands'  ;  so  was  their  time.  Lord  Wensleydale,  in  Lynch  v. 
Kiii'jht  and  wife,  9  H.  L.  C.  597,  even  doubted  if  loss  of  consortium 
of  her  husband  was  sudh  special  damage  as  would  sustain  an  action 
of  slander  by  a  wife.  Loss  of  the  society  of  her  friends  and 
neighbours  clearly  is  not.  The  only  special  damage,  in  fact,  which 
a  married  woman  living  with  her  husband  could  set  np  was  loss  of 
hospitality.  And,  even  in  conceding  her  this,  the  judges  seemed 
to  be  straining  the  law,  for  her  husband  was  bound  to  maintain  her  : 
so  that  such  gratuitous  entertainment  was  really  a  saving  to  the 
husband's  pocket.  But  in  Davies  v.  Solomon,  L.  R.  7  Q.  B.  112  ; 
41  L.  J.  Q.  B.  10  ;  20  W.  R.  167  ;  25  L.  T.  799,  the  judges  declined 
to  scrutinize  too  nicely  into  such  matters  ;  and  no  doubt  the  loss  is 
really  the  wife's.  Her  friends  would  supply  her  with  better  and 
other  food  than  that  which  the  law  compels  her  husband  to  afford 
her.  The  operation  of  the  Married  Women's  Property  Acts  may 
lessen  the  hardship.     In   some  cases  the  difficulty  might  perhaps 

(322) 


HUSBAND    ANT)    WIFE.  251 

have  been  obviated  had  the  husband  sued  alone.     (See  Coleman  et 
ux  v.  JIarcourt,  1  Lev.  140  ;  post,  p.  .399.) 

Illustrations. 

A  brother  cannot  sue  for  slander  of  his  sister. 

Subbaiyar  v.  Kristnaiyar  and  another,  I.  L.  R.,  1  Madras,  383. 
Nor  a  son  for  slander  of  his  deceased  lather. 

Luckumsey  Iiouyi  v.  Hurbun   Nursey  and  others,  I  L.   It.,  5  Bom. 
580. 
[*336]  If  one  partner  be  libelled,  he  cannot  recover  for  any  special  damage 
which  lias  occurred  to  the  firm. 

Solomon  and  other*  v.  Merit. r,  1  Stark.  191. 

Bobinson  v.  Marchant,  7  Q.  B.  918  ;  15  L.  J.  Q.  B.  134  ;  lOJur.  156. 
Similarly,  if  the  firm  be  libelled  as  a  body,  they  cannot    jointly  recover  for 
any  private  injury  to  a  single  partner  ;  though  that  partner  may  now  recover 
his  individual  damages  in  the  same  action. 

Haythorn  v.  Lawson,  3  C.  &  P.  196. 

Le  Farm  v.  Malcolmson,  1  H.  L.  C.  637  ;  8  Ir.  L.  R.  418  ;  13  L.  T. 

(O.  S.)  61. 

Where  words  actionable  per  se  were  spoken  of  a  married  woman,  she  was 

allowed  to  recover  only  20*.  damages  ;  all  the  special  damage  which  she  proved 

at  the  trial  was  held  to*  have  accrued  to  her  husband,  ami  not  to  her  :  he  ought, 

therefore,  to  have  sued  for  it  in  a  separate  action. 

Dene/ate  and  wife  v.  Gardiner,  4  M.  &  W.  5  ;  2  Jur.  470. 
Seville  et  ux.  v.  Sweeny,  4  B.  &  Ad.  514  ;1N.&  M.  254. 
And  other  cases  post,  p.  399. 
A  declaration  by  husband  and  wife  alleged  that  the  defendant  falsely  and 
maliciously  spoke  certain  words   of  the  wife,   imputing   incontinence  to  her. 
whereby  she  lost  the  society  of  her  neighbours,  and  became  ill  and  unable  to 
attend  to  her  necessary  affairs  and  business,  and  her  husband  incurred  expense 
in  curing  her,  and  lost  the  society  and  assistance  of  his  wile  in  his  domestic 
affairs.     Held  that  the  declaration  disclosed  no  cause  of  action. 

Allsop  and  wife  v.  Allsop,  5  H.  &  N.  534  ;  29  L.  J.  Ex.  315  ;    6  Jur. 

N.  S.  433  ;  8  W.  R.  449  ;  36  L.  T.  (Old  S.)  290. 
Approved  in  Lynch  v.  Knight  and  wife,  9  H.  L.  C.  577. 
Where  words  were  spoken  imputing  unchastity  to  a  woman,  and  by  reason 
thereof  she  was  excluded  from  a  private  society  and  congregation  of  a  sect  of 
Calvinistic  Methodists,  of  which  she  had  been  a  member,  and  was  prevented 
from  obtaining  a  certificate,  without  which  she  could  not  become  a  member  of 
any  other  society  of  the  same  nature;  held  that  such  a  result  was  not  such 
special  damage  as  would  render  the  words  actionable. 

Roberts  and  wife  v.  Roberts,  5  B.  &  S.  384  ;  33  L.  J.  Q.  B.  249  ;  12 
W.  R.  909  ;  10  L.  T.  602  ;  10  Jur.  N.  S.  1027,. 
[N.  B. — The  excommunication  case,  Barnabas  v.  Traunter,  1  Vin.  Abr.  396  ; 
ante,  p.  301,  was  not  cited  to  the  court  in  this  case.] 


(323) 


CHAPTER    XL 

[*  337]  INJUNCTIONS. 

Injunctions   granted   in    actions   for  defamation   are  of   three 
kinds  : — 

I.     Injunctions  granted  to  restrain  or  prevent  such  libels  as 
al-e,  or  if  published  will  be,  contempt  of  Court. 
II.     Injunctions  granted  after  verdict,  or  at  the  final  hearing. 
III.     Injunctions  granted  on  an  interlocutory  application  before 
or  without  any  verdict. 


I.    Injunctions  to  restrain  or pr 'event  Contempt  of  Court. 

A  libel  is  a  contempt  of  Court,  which 

(a)  Scandalises  the  Court  itself  ; 

(b)  Abuses  the  parties  to  any  action  before  the  Court  ; 

(c)  Prejudices  mankind  against  either  party  before  the  case  is 

heard. 
Such  libels  the  Court  has  a  clear  and  undoubted  jurisdiction  to 
restrain.  "  Nothing  is  more  incumbent  upon  courts  of  justice,  than 
to  preserve  their  proceedings  from  being  misrepresented  ;  nor  is 
there  anything  of  more  pernicious  consequence,  than  to  prejudice 
the  minds  of  the  public  against  persons  concerned  as  parties  in 
causes,  before  the  cause  is  finally  heard."  (Per  Lord  Hardwicke,  L. 
C,  in  [*  338]  Roach  v.  Garvan,  Re  Read  and  Huggonson,  2  Atk. 
469  ;  2  Dick.  794.)  The  Court,  therefore,  will  grant  an  injunction 
to  restrain  the  publication  of  any  libels,  the  evident  result  of  which 
would  be  to  affect  the  administration  of  justice,  whether  the  writer 
intended  that  result  or  no.  (Per  Lord  Romilly,  M.  R.,  in  Daw  v. 
Eley,  L.  R.  7  Eq.  49  ;  38  L.  J.  Ch.  113.)  Such* an  injunction  must 
be  applied  for  promptly  ;  and  it  will  not  be  granted  if  the  applicant 
has  himself  entered  into  a  controversy  on  the  matter  in  the  public 
press.     (Ibid.) 

Illustrations. 

While  the  evidence  in  a  Chancery  suit  was  being  taken  before  the  examiner, 
the  plaintiff  caused  the  following  advertisement  to  be  inserted  in  the  Times : — 
"  To  the  share  and  debenture  holders  of  the  West  Hartlepool  Harbour  and 
Railway  Company  : — I  have  just  published  a  reply  to  the  proceedings  of  a 
meeting  of  the  proprietors,  held  at  West  Hartlepool  on  the  28th  June  last, 
which  may  be  had  of  King,  Parliament  Street,  and  all  booksellers.    B.  Cole- 

(324) 


CONTEMPT    OF    COURT.  253 

mm> Street,  London."     The  pamphlet  was  full  of  abuse  of  the  chairman 

of  the  defendant  company,  and  also  gave  a  digest  of  plaintiff's  evidence  before 
the  examiner,  &c.  Vice-Chancellor  Wood  granted  an  injunction  to  restrain  the 
plaintiff,  the  solicitors,  servants,  agents,  and  workmen  from  publishing  so  much 
of  the  pamphlet  (stating  the  objectionable  passages),  and  from  publishing  or 
offering  for  sale,  during  the  progress  of  this  suit,  any  book  or  pamphlet  con- 
taining statements  of  the  proceedings  in  this  suit  ;  and  also  from  making  public 
any  of  such  proceedings  otherwise  than  in  the  due  course  of  the  prosecution  of 
this  suit  until  the  hearing  of  this  ease,  or  until  the  further  order  of  this  Court. 
Coleman  v.  West  Hartlepool  Harbour  and  Rail.  Co.,  8  W.  11.  734  ;  2 
L.  T.  766. 

One  of  the  defendants  in  an  action,  who  was  a  Nonconformist  minister,  cir- 
culated a  handbill  through  the  town  in  the  following  words  :— 

"  Chancery  Suit. 
"Congregational  Church,  Heme  Bay. 

"On  Sunday  morning,  June  25th,  the  Rev.  Thomas  Bland  ford  will  preach  a 
sermon  with  special  reference  to  the  trial  in  which  the  town  is  so  deeply  inter- 
ested, and  which  is  fixed  for  the  27th  and  following  days. 

"  Divine  service  to  commence  at  11  o'clock." 

About  forty  inhabitants  of  Heme  Bay  were  to  be  examined  as  witnesses  at 
the  trial.  Bacon,  V.-O,  on  Saturday,  the  24th,  granted  an  injunction  tore- 
strain  Blandford  from  preaching  any  sermon  or  delivering  any  address  with 
special  or  other  reference  to  the  trial,  and  from  issuing  these  handbills,  or  being 
in  any  way  instrumental  in  the  publication  or  distribution  of  these  or  any  other 
like  handbills  or  notices,  and  from  otherwise  prejudicing  or  interfering  with 
the  trial  of  the  action  or  the  persons  to  be  examined  as  witnesses  therein. 
Maekett  v.   Commissioners  of  Heme  Bay,  24  W.  R.  845. 

The  defendant,  on  receiving  a  statement  of  claim  charging  him  with  fraud, 
[*  339]  wrote  an  angry  letter  to  the  plaintiff,  a  clergyman,  threatening  to  have 
a  few  thousand  copie's  printed,  with  defendant's  own  remarks  thereon,  and 
copies  of  the  defendant's  letters,  and  distributed  amongst  all  the  clergy,  "  ad- 
dressed from  the  Clergy  List."  Fry,' J.,  granted  an  injunction  to  restrain  the 
threatened  publication,  as  being  both  a  libel  on  the  plaintiff  as  plaintiff,  and 
also  as  tending  to  prejudice  the  fair  trial  of  the  action. 

Kitcapv.  Sharp,  52  L.  J.  Ch.  134 ;  31  W.  R.  227 ;  48  L.  T.  64. 

The  plaintiffs  and  the  defendant  were  ship  brokers  ;  the  plaintiffs  delivered  a 
statement  of  claim  charging  the  defendant  with  unfair  and  improper  conduct 
in  his  business,  and  before  any  defence  was  delivered  circulated  copies  among 
the  business  connections  of  both  parties.  Malins.V.  C,  held  that  the  plaintiffs 
had  committed  a  contempt  of  Court,  and  must  pay  the  costs  of  a  motion  to 
commit  them  ;  he  also  granted  an  injunction  to  restrain  the  plaintiffs  from  pub- 
lishing or  circulating  copies  of  the  statement  of  claim  in  the  action . 

Bowden  and  another  v.  Russell,  46  L.  J.  Ch.  414  ;  36  L.  T.  177. 

Closely  akin  to  the  power  of  restraining  contempts  of  Court,  is 
the  power  which  all  superior  Courts  undoubtedly  possess  of  forbid- 
ding for  a  time  reports  of  or  comments  on  their  own  proceedings, 
whenever  the  presiding  judge  considers  that  such  publication  will 
prejudice  future  proceedings. 

Illustrations. 

On  the  trial  of  Thistlewood  and  others  for  treason,  in  1820,  Abbott,  C.  J., 
announced  in  open  Court  that  he  prohibited  the  publication  of  any  of  the  pro- 
ceedings until  the  trial  of  all  the  prisoners  should  be  concluded.  In  spite  of 
this  prohibition,  the  Observer  published  a  report  of  the  trial  of  the  first  two 
prisoners  tried.  The  proprietor  of  the  Observer  was  summoned  for  the  con- 
tempt, and,  failing  to  appear,  was  fined  500£. 
R.  v.  Clement,  4  B.  &  Aid.  218. 

Where  one  of  two  prisoners  charged  with  murder  confessed  before  his  trial, 
and  by  his  confession  seriously  implicated  the  other,  the  Court  of  Sessions  pro- 

(325) 


254  INJUNCTIONS. 

liil)ilc(]  the  'Edinburgh  Evening  Courant  from  publishing  the  confession,  lest  it 
should  prejudice  the  fair  trial  of  the  other  prisoner. 

Bell's  Notes,  165. 

See  also  Entond's  Oase(Dec.  7th,  182!)),  Shaw,  229. 

Fleming  and  others  v.  Newton,  1  II.  L.  C.  363 ;  <">  Bell's  App.  175. 

Riddell  v.  Clydesdale  Horse  Society,  12  Court  of  Session  Cases  (4th 
Scries),  976. 
Where  several  prisoners  were  to  be  tried  at  one  sessions  for  similar  acts  of 
sedition,  and  on  the  trial  of  the  first  one  the  jury  disagreed,  and  theDublin 
Evening  Post  severely  attacked  the  jury  for  not  convicting  him,  the  Dublin 
Assize  Court  made  an  order  prohibiting  all  comments  in  any  newspaper  upon 
the  proceedings  of  the  session  till  all  the  prisoners  had  been  tried,  considering 
[*340]  that  such  comments  were  calculated  to  excite  feelings  of  hostility  towards 
the  prisoners  about  to  be  tried. 

R.  v.  O'Dogherty,  5  Cox,  C.  C.  348. 
The  House  of  Lords,  when  sitting  as  a  Court  of  Law,  claimed  for  many 
years  the  right  to  appoint  one  printer  to  publish  their  proceedings,  and  to  order 
that  no  other  person  should  presume  to  publish  the  same,  even  after  the  case 
was  at  an  end.  So,  in  the  case  of  an  impeachment,  Lord  Erskine,  L.  C, 
held,  after  great  hesitation,  that  such  an  order  must  be  enforced  by  injunction; 
thus  apparently  admitting  that  one  chamber  of  the  legislature  had  the 
power  to  create  a  monopoly.  Such  a  decision  would  not  be  upheld  in  the 
present  day. 

Gurney  v.  Longman  (1807),  13  Vesey,  493-509. 

And  see  Millar  v.  Taylor  (1769),  4  Burr.  2303-2417. 

Manby  v.  Owen  (1755),  4  Burr.  2329,  2404. 

Roper  v.  Streater,  Skin.  234  ;  1  Mod.  217. 

The  Stationers  v.  Patentees  of  Rolle's  Abridgment,  Carter,  89. 

Buttericorth  v.  Robinson,  5  Ves.  709. 


II.  Injunctions  granted  after  Verdict  or  at  the  final  Hearing. 

The  Superior  Courts  have  also  unquestionable  power  to  grant  an 
injunction  to  restrain  any  further  publication  of  what  a  jury  has 
found  to  be  an  actionable  libel  or  slander.  After  such  a  finding  in 
his  favour,  the  plaintiff  may  clearly  ask  for  an  injunction  for  his 
protection  in  the  future  in  addition  to  damages  for  the  injury  done 
him  in  the  past.  Libel  or  no  libel,  malice  or  no  malice,  are  pre- 
eminently questions  for  a  jury,  but  after  they  have  once  been 
decided  the  judge  may  grant  an  injunction,  if  he  is  of  opinion  that 
any  repetition  of  the  libel  would  be  injurious  to  the  plaintiff's 
property.  {Saxby  v.  Fasterbrook,  3  C.  P.'  D.  339  ;  27  W.  R.  188.) 
So  when  an  action  is  commenced  in  the  Chancery  Division  (as  it 
now  may  be),  and  the  defendant  does  not  demand  a  jury,  or  applies 
for  one  too  late,  the  judge  who  tries  the  action  may,  at  the  hearing, 
grant  an  injunction.  (27iorle>/s  Cattle  Food  Co.  v.  Massam,  6 
Ch.  D.  582  ;  46  L.  J.  Ch.  713  ;  14  Ch.  D.  763  ;  28  W.  R.  295  ;  41 
L.  T.  542  ;  (C.  A.)  14  Ch.  D.  781  ;  28  W.  R.  966  ;  42  L.  T.  851  ; 
Thomas  v.  Williams,  14  Ch.  D.  864  ;  49  L.  J.  Ch.  605  ;  28  W.  R. 
983;  43  L.  T.  91.  See  also  the  remarks  of  Lord  [*34l]  Langdale,  M. 
R.,  in  Clark  v.  Freeman,  11  Beav.  117, 118;  and  of  the  late  Master  of 
the  Rolls  in  Ilinrichs  v.  Berndes,  Weekly  Notes  for  1878,  p.  11.) 

(326) 


BEFORE    VERDICT.  255 

Illustrations. 

The  plaintiff  and  the  defendant  were  rival  railway  signal  manufacturers. 
They  both  invented  practically  the  same  improvement ;  but  defendant  was  the 
first  to  patent  it.  Plaintiff  "subsequently  petitioned  for  a  patent,  but  was 
refused  as  being  too  late.  Thereupon  the  defendant  published  an  advertise- 
ment announcing  that  "  Saxby's  application  was  cancelled  by  the  Crown  on  the 
ground  of  piracy  from  Easterbrook."  Plaintiff  claimed  damages  £1,000,  and 
an  injunction  to 'restrain  the  defendant  from  publishing  libels  againsl  the  plain- 
tiff of  the  like  nature  and  description.  The  jury  awarded  forty  shillings,  and 
Lord  Coleridge,  C.  J.,  granted  a  perpetual  injunction.  The  Divisional  Court 
decided  that  lie' had  power  so  to  do,  as  the  jury  had  previously  found  the  mat- 
ter libellous.  [N.B. — This  is  the  only  reported  case  in  which  any  injunction 
has  been  granted  in  the  Queen's  Bench  Division  in  an  action  of  libel  or  slander.] 
'  Saxby  v.  Easterbrook,  3  C.  P.  D.  339  ;  27  W.  II.  188. 
Joseph  and  Josiah  Thorley  had  equal  rights  to  manufacture  "  Thorley's  Food 
for  Cattle,"  both  possessed  the  secret  of  its  composition,  and  manufactured  the 
same  article.  Yet  the  executors  of  Joseph  advertised  that  they  "  alone  pos- 
sessed the  secret  for  compounding  that  famous  condiment,"  which  they  knew 
to  be  false.  Malins,  V.-C.,  refused  to  grant  an  injunction  on  an  interlocutory 
application  ;  but  granted  it  at  the  final  hearing,  and  his  decision  was  upheld  by 
the  Court  of  Appeal. 

2horl(  tf's  Cattle  Food  Co.  v.  Massam  (inrerlocutorv),  6  Ch.  D   582  ; 
46  L.  J.  Ch.  713. 
(Before  Malins,  V.-C.)14  Ch.  D.  7G3  ;    28  W.  R.  295  ;    41  L.  T. 

542. 
(C.  A.)  14  Ch.  D.  781  ;  28  W.  R.  966  ;  42  L.  T.  851. 
And  see  James  v.  James,  L.  R.   13  Eq.  421  ;    41  L.  J.  Ch.  253  ;    26 
L.  T.  568. 
Mr.  Gandy  owned  two  patents  for  manufacturing  cotton  belting  ;  plaintiffs 
were  formerly  his  agents.     An  injunction  was  granted  by  Pearson,  J.,  in  1883, 
to  restrain  the  plaintiffs  from  selling  the  belting  of  other  manufacturers  as  that 
of  Gandy.     Subsequently  Gandy  inserted  an  advertisement  in  the  British  Trade 
Journal,  complaining  that  unprincipled  persons  were  imitating  his  belting,  and 
misleading  the  public,  stating  that  the  above  injunction  had  been  granted,  and 
that  he  had  reason  to  believe  that  plaintiffs  still  continued  to  sell  a  large  quantity 
of  other  belting  as  his.     North,  J.,  granted  an  injunction  with  costs  against 
both  Gandy  and  the  publisher  of  the  British  Trade  Journal,  and  also  ordered 
Gandy  to  pay  £500  damages. 

Kerr  v.  Gandy,  3  Times  L.  R.  75. 
Where  the  plaintiff  in  a  trade-mark  case  failed  on  all  points  but  one,  and 
afterwards  published  a  "  caution  "  to  the  trade,  which  stated  the  effect  of  the 
judgment  so  far  as  it  was  in  his  favour,  but  omitted  all  allusion  to  the  parts  of 
the  judgment  in  defendant's  favour,  North,  J.,  held  the  report  unfair,  gave 
[*342]  the  plaintiff  £5  damages,  and  granted  an  injunction  restraining  its  circula- 
ion,  with  costs. 

Hay ward  &  Co.  v.  Hayward  &  Sons,  34  Ch.  D.  198  ;   56  L.  J.  Ch. 
287  ;  35  W.  R,  392  ;  55  L.  T.  729. 


III.    Injunctions  granted  on  an  Interlocutory  Application  before 
or  icithout  any  Verdict. 

It  has  now  been  decided  in  the  Chancery  Division  (in  the  face  of 
a  long  series  of  decisions  to  the  contrary),  that  the  Court  has  juris- 
diction to  grant  an  injunction  to  restrain  the  publication  of  a  libel 
upon  an  interlocutory  application  at  any  stage  of  the  action. 
( Quartz  Hill  Gold  Mining  Co.  v.  Beall  (C.  A.),  20  Ch.  D.  501  ; 
51  L.  J.   Ch.   874  ;    30  W.  R.  583  ;    46   L.   T.   746.)     And  also  to 

(327) 


256  INTERIM. 

restrain  any  slander  calculated  to  injure  the  plaintiff's  business. 
(Hermann  Loog  v.  Bean  (C.  A.),  20  Ch.  I).  306  ;  53  L.  J.  Ch. 
1128  ;  32  W.  R.  904  ;  51  1..  T.  442  ;  48  J.  P.  708.)  No  such  in- 
junction lias  as  yet  been  granted  in  the  Queen's  Bench  Division,  so 
far  as  I  am  aware. 

But  this  jurisdiction  must  he  exercised  with  great  caution  so  far  as 
interlocutory  applications  are  concerned,  and  especially  m  cases  of 
Blander.  Thus,  an  interlocutory  injunction  "will  not  be  granted 
restraining  any  publication  that  is  prima  facie  privileged  (Quartz 
Hill  Gold  Mining  Co.  v.  Beall  (C.  A.),  20  Ch.  D.  501  ;  51  L.  J. 
Ch.  874  ;  30  W.  R.  583  ;  46  L.  T.  746),  or  that  may  he  bond,  fide 
comment  on  a  matter  clearly  of  public  interest.  (Armstrong  and 
Others  v.  Armit  and  Others,  2  Times L.  R.  887.)  Nor  will  an  injunc- 
tion he  granted  until  it  is  proved  that  the  matters  alleged  in  the  docu- 
ment complained  of  are  untrue,  so  that  the  further  Issuing  of  such  doc- 
uments would  not  be  bond  fide.  (Ilalsey  v.  Brotherhood  (C.  A.),  19 
Ch.  D.  386  ;  51  L.  J.  Ch.  233  ;  30  W.  R.  279  ;  45  L.  T.  640.  See  also 
[*343]  Anderson  v.  Liebig^s  Extract  of  Meat  Co.,  Limited,  45  L. 
T.  757.)  Hence  on  this  application,  apparently,  it  lies  on  the 
plaintiff  to  prove  that  the  defendant's  statements  are  false.  (Bur- 
nett v.  Tak,  45  L.  T.  743.)  As  soon  as  this  is  done  an  injunction 
will  he  granted  against  continuing  them,  as  all  future  publications 
would  then  be  maid  fide.  (Hill  v.  Hart  Havies,  21  Ch.  D.  798  ; 
51  L.  J.  Ch.  845  ;  31  W.  R.  22  ;  47  L.  T.  82  ;  Societe  Anonyme 
des  Manufactures  de  Glaces  v.  Tilahmarfs  Patent  Sand  Blast  Co. 
(C.  A.),  25  Ch.  D.  1  ;  53  L.  J.  Ch.'l  ;  32  W.  R.  71  ;  49  L.  T.  451  ; 
48  J.  P.  68.) 

And  although  an  interim  or  interlocutory  injunction  cannot  as  a 
rule  be  obtained  unless  the  applicant  shows  clearly  that  "  irreparable 
damage"  will  ensue  from  the  continuance  of  the  acts  complained  of 
— damage,  that  is,  for  which  no  amount  of  damages  can  adequately 
compensate  him  (Mogul  Steamship  Co.  v.  M'  Gregor,  Gow  <b  Co., 
15  Q.  B.  D.  476  ;  54  L.  J.  Q.  B.  540  ;  53  L.  T.  268  ;  49  J.  P.  646)— 
yet  in  this  special  branch  of  equity  injunctions  appear  to  be  freely 
granted  without  proof  of  any  actual  damage  whenever  the  judge 
thinks  the  words  are  calculated  to  injure  the  plaintiff's  business  ; 
and  this,  even  in  the  case  of  slander  of  title,  where  special  damage 
is  essential  to  the  caus£  of  action  at  common  law.  (Thomas  v. 
William*,  14  Ch.  D.  864  ;  49  L.  J.  Ch.  605  ;  28  W.  R.  983  ;  43  L. 
T.  91.  But  see  Dicks  v.  Brooks  (C.  A.),  15  Ch.  D.  22  ;  49  L.  J. 
Ch.  812  ;  29  W.  R.  87  ;  43  L.  T.   71.) 

Illustrations. 

The  Rev.  Thomas  Scott,  at  the  time  of  his  death,  was  employed  in  revising 
and  improving  the  fourth  edition  of  the  Commentaries  on  the  Bible,  with  the 
assistance  of  A.  After  his  death,  the  plaintiff  employed  A.  to  finish  this  work, 
and  then  published  it  under  the  title  of  ' '  The  5th  Edition  of  Scott's  Bible,  with 
the  Author's  last  Corrections  and  Improvements."  In  January,  1841,  the 
defendants,  Fisher  &  Co.,  began  to  publish,  in  monthly  numbers,  an  illustrated 
edition  of  Scott's  Bible,  and'a  reprint  of  the  fourth  edition,  the  copyright  in 
which  had  expired  ;  they  advertised  it,  both  in  the  public  papers  and  on  the 
wrappers  of  the  numbers,  as  "  a  new  and  carefully  revised  edition  of  the  work," 

(328) 


INJUNCTIONS.  257 

and  as  intended  to  "  contain  the  whole  unadulterated  labours  of  the  author,  not 
as  [*344]  re-edited  byadifferent  hand  and  an  inferior  mind,  but  precisely  a* 
the  learned  commentator  bequeathed  them  to  the  world;  the  edition  being 
printed  from  the  Last  which  the  author  published  in  the  vigour  of  life."  The 
bill  prayed  thai  I  lie  defendants  might  be  restrained  from  selling  or  disposing  of 
any  more  copies  of  their  publication,  having  on  the  wrappers  or  covers  thereof 
the  advertisement  or  announcement  before  mentioned.  But  Lord  Tottenham, 
L.  C,  held  "that  the  advertisement  complained  of  did  not  hold  out  to  the 
public  that  the  defendants'  work  contained  any  matter  which  was  the  exclusive 
property  of  the  plaintiff;  that  although  it  further  alleged  that  any  additional 
or  other  matter  which  was  contained  in  any  edition  subsequent  to  the  fourth 
was  spurious  and  of  no  value,  that  allegation,  if  untrue,  was  no  subject  for  an 
injunction,  although  it  might  be  the  subject  of  an  action,  as  being  a  libel  on  or 
disparagement  of  the  plaintiff's  edition." 

8  eley  v.  Usher  (1841),  11  Sim.  581. 
And  see  Martin  v.  Wright  (1833),  6  Sim.  297. 
There  is  in  Scotland  a  public  register  of  protests  for  non-acceptance  and  non- 
payment of  bills  of  exchange  and  promissory  notes,  established  by  the  Scotch 
Acts  of  1681  and  1(596,  and  the  12  Geo.  Ill,  c.  72,  and  23  Geo.  III.  c.  18,  to 
which  everybody  has  a  right  of  access.  The  defendants  printed  and  published 
an  accurate  copy  of  this  register  for  the  benefit  and  information  of  merchants. 
A  person  whose  name  was  upon  the  register  applied  to  the  Court  of  Session  for 
an  interim  interdict  to  restrain  such  publication,  so  far  as  his  own  name  was 
concerned.  The  Court  granted  the  application,  regarding  it  as  an  unauthorized 
publication  of  their  own  proceedings.  But  the  House  of  Lords,  on  appeal, 
reversed  the  decree,  holding  that  no  such  interdict  ought  to  have  been  granted  ; 
Lord  Cottenham  expressing  a  strong  opinion  that  such  interdicts  are  an  excess 
of  the  -powers  of  the  Court  of  Session  ;  as  by  such  intervention  "  jurisdiction 
over  libels  is  taken  from  the  jury,  and  the  right  of  unrestricted  publication  is 
destroyed." 

Fleming  and  others  v.  Neicton  (1848),  1  H.  L.  C.  363  ;  6  Bell's  App. 

175,  post,  p.  354  ;  and  see  Riddell  v.  Clydesdale  Horse  Society (1885), 

12  Ct.  of  Session  Cases  (4th  series),  976. 

But,  in  1869,  Malins,  V.-C,  granted  both  an  interim  and  a  final  injunction 

to  restrain  one  of  the  creditors  of  a  bankrupt  firm  from  advertising,  for  the 

information  of  all  the  other  creditors,  that  the  plaintiff  was  a  partner  in  that 

firm,  and  was  solvent. 

Dixon  v.  Holden,  L.  R.  7  Eq.  488  ;  17  W.  R.  482  ;  20  L.  T.  357. 
A  motion  was  made  on  behalf  of  plaintiffs,  the  trustees  of  a  permanent  benefit 
building  society  and  deposit  bank,  for  an  injunction  to  restrain  the  further  pub- 
licationand  sale  by  the  defendants  of  a  book  containing  libellous  comments  on. 
the  plaintiffs'  annual  balance-sheets,  and  imputations  on  the  solvency  of  the 
society  ;  but  Sir  John  Wickens,  V.-C,  refused  the  application,  on  the  ground 
that  he  had  no  jurisdiction  to  grant  such  an  injunction. 

Mid'kcm  v.  Ward,  L.  R.  13  Eq.  619  ;  41  L.  J.  Ch.  464  ;  26  L.  T.  831. 
The  plaintiffs,  who  were  subscribers  to  an  association  called  The  Underwriters" 
Registry,  and  who  had  had  a  ship  registered  by  the  association  in  the  highest 
class,  moved  to  restrain  the  defendants,  the  committee  of  the  association,  from 
insertim-;  in  their  published  registry  of  ships  the  words  "  Class  suspended" 
against  ."the  name  of  the  plaintiffs' ship,  the  defendants  having,  by  plaintiffs' 
permission,  had  a  second  survey  of  the  ship,  and  altered  their  opinion  as  to  its 
class.  Held,  that  [*  345]  the  defendants  were  justified  in  notifying  to  their  sub- 
scribers and  the  public  their  honest  opinion  as  to  the  merits  of  the  ship,  and 
had  a  right,  to  suspend  the  class  until  the  plaintiffs  should  have  altered  the  ship' 
according  to  their  requirements.     Injunction  refused. 

Clover  and  anotlier  v.  Royden,  L.  R.  17  Eq.  190  ;  43  L.  J.  Ch.  665  ; 
22  W.  R.  254  ;  29  L.  T.  639. 
Hall,  V.-C,  refused  to  grant  an  injunction  asked  for  by  an  insurance  com- 
pany to  restrain  the  continued  publication  of  a  pamphlet  which  commented  upon 
the  statistical  returns  of  various  insurance  companies,  compared  the  expenses  of 
their  establishments  with  their  liabilities,  imputed    to    the   plaintiff  company 
insol-wmcy  and  reckless  extravagance  in  its  management,  and  contained  other 
17  lib.  &  SLAN.  (329) 


258  INJUNCTIONS. 

Statements  injurious  to  the  plaintiff  company  in  its  trade  and  business.  On 
appeal,  bis  refusal  was  confirmed  by  Lord  Cairns,  L.  C,  and  James  and  Mellisb 
L.J.J.,  on  the  ground  that  the  Court  had  no  jurisdiction  to  gram  such  an  in- 
junction. 

Prudential  Assurance  Co.  v.   Knott,  L.  R.  10  Ch.  142  ;  44  L.  J.  Ch. 
L92  ;  23  W.  R.  249;  31  L.  T.  866. 

The  prosecutors  in  a  trade-mark  case  agreed  not  to  press  for  a  conviction  if 
the  plaintiff,  the  offender,  would  apologise,  lie  thereupon  gave  them  a  letter 
of  apology,  with  authority  to  make  such  use  of  it  as  they  might  think  necessary 
and  they  accordingly  offered  no  evidence,  and  he  was  acquitted.  They  pub- 
lished this  letter  as  an  advertisement,  and  continued  to  do  so  for  nearly  two 
months.  Thereupon  plaintiff  moved  to  restrain  any  further  publication,  on  the 
ground  that  the  permission  he  had  expressly  given  them  to  publish  it  was  ob- 
tained by  duress.  Held,  that  there  was  no  duress,  that  the  compromise  was  a 
lawful  one,  and  that  the  Court  could  not  grant  any  injunction,  even  though  the 
publication  of  the  apology  was  injuring  plaintiff's  business. 

Fisher  v.  Apollinaris  Go.  (C.  A.),  L.  It.  10  Ch.  2!)7;  44  L.  J.  Ch.  500; 
23  W.  R.  460;  32  L.  T.  628. 

The  plaintiff,  who  was  a  vendor  of  cigars,  moved  to  restrain  the.  defendants, 
Berndes  &  Co,,  from  publishing  in  the  London  Tobacco  Trade  Review  a  circular 
which  it  was  alleged  they  were  about  to  publish  in  that  journal,  and  which  the 
plaintiff  considered  would  injure  his  trade,  and  also  to  restrain  the  printer  and 
publisher  of  the  Review  from  inserting  the  advertisement.  The  Master  of  the 
Rolls  ordered  the  motion  to  stand  over  till  the  hearing,  and  observed  that  he 
was  not  prepared  to  say  that,  if,  under  the  Judicature  Act,  a  plaintiff  could 
sustain  an  action  for  libel,  this  Court  would  not  at  the  hearing,  while  awarding 
damages  for  the  libel,  restrain  the  continuance  of  its  publication. 
Einrichs  v.  Berndes,  W.  N.  1878,  p.  11. 

Where  a  'circular  was  sent  by  one  shareholder  to  his  brother  shareholders, 
containing  statements  as  to  the  financial  position  of  the  company  which  were 
not  positively  proved  to  be  untrue,  and  inviting  all  the  shareholders  to  take 
some  joint  action  with  reference  to  the  company,  it  was  held  that  though  the 
Court  had  jurisdiction  to  "grant  ian  interlocutory  injunction  restraining  the  pub- 
lication, yet  it  would  not  do  so  when  the  circular  was,  as  here,  prima  facie  a 
privileged  communication. 

quartz  Rill  Gold  Mining  Go.  v.  Beall  (C.  A.),  20  Ch.  D.  501  ;  51  L. 
J.  Ch.  874  ;  30  W.  R.  583  ;  46  L.  T.  746. 

A  member  of  a  friendly  society  issued  to  persons  not  members  of  the  society 
[*346]  circulars  containing  inaccurate  statements  as  to  the  financial  condition  of 
the  society.  Kay,  J.,  on  motion,  granted  an  injunction  to  restrain  "  the  further 
issuing  of  this  circular,  or  any  other  circular  or  letter  containing  false  or  inac- 
curate representations  as  to  the  credit  or  financial  condition  of  the  said  society." 
lEll  v.  Hart  Dames,  21  Ch.  D.  798  ;  51  L.  J.  C.  H.  845  ;  31  W.  R.  22. 

The  plaintiff  dismissed  one  of  his  managers,  the  defendant,  from  his  employ, 
who.  thereupon  went  about  among  the  plaintiff's  customers,  making  oral  state- 
ments reflecting  on  the  solvency  of  the  plaintiff,  and  advised  some  of  them  not 
to  pay  the  plaintiff  for  machines  which  had  been  supplied  through  himself.  The 
plaintiff  brought  an  action  to  restrain  the  defendant  from  making  statements  to 
the  customers  or  any  other  person  or  persons  that  the  plaintiff  was  about  to  stop 
payment,  or  wTas  in  difficulties  or  insolvent,  and  from  in  any  manner  slandering 
the  plaintiff  or  injuring  his  reputation  or  business.  No  special  damage  was 
proved;  but  it  was  held  both  by  Pearson,  J.,  and  the  Court  of  Appeal,  that  the 
Court  has  jurisdiction  to  restrain  a  person  from  making  slanderous  statements 
^  calculated  to  injure,  the  business  of  another  person,  and  that  this  jurisdiction 
extends  to  oral  as  well  as  written  statements,  though  it  requires  to  be  exercised 
with  great  caution  as  regards  oral  statements,  and  that  in  the  present  case  an 
injunction  ought  to  be  granted. 

Hermann  Loon  v.  Bean  (C.  A.),  26  Ch.  D.  306  ;  53  L.  J.  Ch.   1128  ; 
32  W.  R.  994  ;  51  L.  T.  442  ;  48  J.  P.  708. 

The  coopers  of  Cork  and  Limerick,  who  made  butter-firkins  by  hand,  were 
much  annoyed  at  the  plaintiff's  starting  a  manufactory  near  Limerick  for 
making  similar  firkins  by  machinery  ;  and  they  induced  the  butter  merchants 

(330) 


PRIVATE    LETTERS.  259 

of  Limerick  to  print  and  widely  distribute  a  "  Notice  to  Farmers  "  stating  that 
tliey  would  not  purchase  any  butter  packed  in  machine-made  firkins,  as  they 
found  them  "  to  be  most  injurious  to  the  keeping  qualities  of  butter,"  to  the 
great  injury  of  plaintiff's  business.  The  Irish  Queen's  Bench  Division  granted 
an  injunction  to  restrain  the  publication  of  this  notice,  on  the  authority  of 
Hermann  Loog  v.  Bean,  holding  that  the  Judicature  Act  had  altered  the  law  as 
laid  down  in  Prudential  Assurance  Co.  v.  Knott. 

Punch  v.  Boyd  and  others,  16  L.  R.  Ir.  476. 
The  Briton  Life  Association,  which  was  not  a  limited  company,  amalgamated 
twenty  years  ago  with  another  company  called  the  Medical  and  General  Life 
Association,  and  the  company  thus  formed  took  the  name  of  the  Briton  Medical 
and  General  Life  Association  (Limited).  In  October,  1875,  a  new  and  distinct 
company,  the  plaintiff,  was  registered  as  the  Briton  Life  Association  (Limited). 
In  1885  a  petition  was  presented  for  winding-up  the  Briton  Medical  and  General 
Life  Association  (Limited),  and  in  those  proceedings  a  proposal  was  made  for  a 
reconstruction  of  the  company  and  the  reduction  of  its  contracts.  There  wasl 
a  reference  to  chambers  to  ascertain  whether  this  scheme  could  be  properly 
carried  out  with  regard  to  the  interests  of  the  various  persons  concerned  in  the 
company.  The  defendant,  who  was  a  policy-holder  in  the  Briton  Medical  and 
General  Life  Association  (Limited),  was  alarmed  at  this  proposal,  and  issued 
the  following  advertisement  to  his  fellow  policy-holders:—' '  Life  Policy  Dangers. 
Briton  Life  Office,  which  took  over  the  Med'ical  and  General,  is  opposing  the 
winding-up  petition  by  a  scheme  which  seeks  to  save  shareholders'  unpaid 
capital 'at  expense  of  policy-holders.  With  a  view  to  organized  action,  com- 
[*347]  municate  at  once  with  Dr.  Roberts,  Vanbi^gh  Castle,  Blackheath,  S.  E." 
Kay,  J.,  held,  that  persons  reading  this  advertisement  might  understand  it  to 
refer  to  the  plaintiff  company  (though  that  company  never  had  anything  to  do 
with  the  Medical  and  General  Association)  and  to  impute  insolvency  to  the 
plaintiff  company  ;  and  he  granted  an  injunction  with  costs.  [It  seems  to  me 
a  harmless  advertisement,  not  libellous,  and  to  have  been  published  honestly  in 
reasonable  self-defence.] 

Briton  Life  Association  (Limited)  v.  Roberts,  2  Times  L.  R.  319. 
A  newspaper  article,  commenting  on  recent  alleged  irregularities  in  the  Ord- 
nance Department  of  the  War  Office,  whereby  defective  guns,  &c  ,  had  been 
supplyed  to  the  nation  and  accepted  without  sufficient  trial,  asserted  that  the 
plaintiff,  a  gun  manufacturing  company,  had  obtained  contracts  from  .govern- 
ment officials  by  corrupt  means.  The  plaintiff  brought  an  action  for  damages, 
and  also  applied  for  an  injunction  to  restrain  the  editor  and  printer  of  the  paper 
from  further  publishing  libellous  matter  of  the  plaintiffs  pending  the  action. 
The  Court  (Lord  Coleridge,  C.  J.,  and  Denman,  J.),  refused  the  application, 
as  the  subject-matter  of  the  article  was  clearly  one  of  great  public  interest,  and 
the  comments  thereon  were  not  proved  to  be  mala  fide. 

Armstrong  and  others  v.  Armit  and  others,  2  Times  L.  R.  887. 

Restraining  the  Publication  of  Private  Letters. 

The  unauthorized  publication  of  copyright  letters  or  other.  MSS.,  having 
value  as  literary  property,  will  of  course  be  restrained  on  the  application  of  the 
writer  or  of  one  to  whom  he  has  assigned  his  copyright. 

Pope  v.   Curl,  2  Atk.    342  ;    Thompson  v.    Stanhope,  Ambler,    737  ;' 

Forrester  v.  Waller,   cited  4  Burr.    2331  ;   2  Brown  P.  C.  129  ; 

2  Swanst.  426,  n. 

A  young  man  had  received  letters  from  an  old  lady,   written  under  the 

influence  of  a  weak  attachment  for  him,  which  he  threatened  to  publish.  _  He 

agreed,  however,  not  to  publish  the  letters,  but  to  return  them  on  condition 

that  he  was  paid  a  sum  of  money.     This  sum  was  paid  him  ;  yet  he  refused  to 

give  the  letters  up,  and  again  threatened  to  publish  them.     An  injunction  was 

of  course  granted  to  restrain  such  a  breach'  of  contract  and  violation  of  good 

faith   "with  a  purchaser,  who,    independent    of  any  original  copyright,  had 

acquired  the  undoubted  right  of  preventing  that  publication." 

v.  Eaton  (1813),  cited  2  Ves.  &  B.  23,  28.  I 

Where  an  injunction  had  been  obtained  to  restrain  the  publication  by  the 

(331) 


260  INJUNCTIONS. 

defendant  of  certain  letters  written  by  the  plaintiff  t,o  Mitford,  on  the  ground 
that  Mitford  had  handed  them  to  the  defendant  in  breach  of  confidence.  Sir 
Thomas  Plumer,  V.-C,  dissolved  it  on  proof  that  there  had  been  no  breach  of 
faith  or  confidence,  saying  :  "The  plaintiffs  have  failed  to  establish  either 
ground  lor  the  interference  of  a  Court  of  Equity,  copyright  or  confidence.  If 
any  case  is  to  be  made  against  the  defendant,  it  cannot  be  upon  these  circum- 
stances in  a  Court  of  Equity  ;  the  plaintiffs  must  therefore  be  left  to  do  what 
they  can  at  law  ;  and  this  injunction  must  be  dissolved." 

Lord  1 1  ml  Lady  Perceval  v.  Phipps,  2  Ves.  &  B.  19,  29. 
The  defendant  returned  to  the  plaintiff  the  original  letters  he  had  received 
from  the  plaintiff,  stating  that  he  did  not  consider  himself  entitled  to  retain 
[*348]  them.  He  subsequently  advertised  publicly  that  he  was  about  to  pub- 
lish copies  of  these  letters  which  he  had  taken  before  he  returned  the  orig- 
inals, without  the  knowledge  of  the  plaintiff.  Lord  Eldon,  after  grave  doubts 
as  to  his  power  so  to  do,  ultimately  granted  an  injunction  to  restrain  the  proposed 
publication,  not  on  the  ground  that  he  had  any  power  to  prohibit  libels — this 
he  expressly  disclaimed — but  on  the  ground  that  the  plaintiff  had,  under  the 
circumstances,  a  right  of  property  in  the  letters.  The  letters,  indeed,  do  not 
appear  to  have  been  libellous. 

Gee  v.  Pritchard  and  another  (1818),  2  Swan.  402. 
So  it  has  been  held  in  America  that  a  Court  of  Equity  has  no  jurisdiction  to 
restrain  or  punish  crime,  or  to  enforce  the  performance  of  a  moral  duty,  except 
in  so  far  as  it  is  connected  with  the  rights  of  property.  It  cannot,  therefore, 
restrain  the  publication  of  private  letters  which  have  no  value  as  literary 
productions,  although  it  may  be  evident  that  the  publication  is  proposed  with  a 
view  of  wounding  the  feelings  of  others,  or  of  gratifying  a  perverted  public 
taste. 

Hoyt  v.  McKenzie,  3  Barb.  Ch.  Cases  (New  York),  320. 

Brandreth  v.  Lance,  8  Paige  (New  York  Ch.),  24. 

Wedmore  v.  Seovel,  3  Edw.  Ch.  R.  515. 
But  in  a  recent  case,  where  an  earl  had  separated  from  his  wife,  and  after 
both  were  dead  the  executor  of  the  earl  published  his  "Life  and  Letters,"  and 
thereupon  the  defendant,  the  executrix  of  the  countess,  proposed  to  publish 
some  of  the  earl's  letters,  which  he  had  written  to  her  and  others  in  his  lifetime, 
and  of  which  the  defendant  was  in  possession  as  such  executrix,  Bacon,  V.-C, 
though  admitting  that  such  letters  were  the  defendant's  property,  yet  granted 
an  injunction  forbidding  her  to  publish  or  part  with  any  of  them,  on  the  ground 
that  he  did  not  consider  that  their  publication  was  necessary  for  the  vindication 
ot  the  character  of  the  deceased  countess.  [Is  not  this  reviving  the  censorship 
of  the  press  ?] 

Earl  ofLytton  v.  Devey  and  Swan  Sonnenschien  &  Co.,  54  L.  J.  Ch. 
293  ;  52  L.  T.  121. 

Rival  Patentees. 

A  patent  so  long  as  it  subsists,  is  prima  fade  good  ;  but  a  patentee  is  not 
entitled  to  issue  circulars  stating  his  intention  to  institute  legal  proceedings,  in 
order  to  deter  persons  from  purchasing  alleged  infringements  of  his  patent,  if  he 
has  no  bond  fide  intention  to  follow  up  his  threats  by  taking  such  proceedings, 
and  the  Court  will  in  such  case  restrain  him  from  any  further  issue  of  such 
circulars 

liollins  v.  Hinks,  L.  R.  13  Eq.  355  ;  41  L.  J.  Ch.  358:  20  W.  R.  287  ; 

26  L.  T.  56. 
Axmann  v.  Lund,  L.  R.  18  Eq.  330:  43  L.  J.  Ch.  655  ;  22  W.R.789. 
Watson  v.  Trash,  6  Ohio,  531. 
The  holder  of  a  patent,  the  validity  of  which  is  not  impeached,  will  not  be 
restrained  by  injunction  from  issuing  notices  warning  the  public  against  pur- 
chasing certain  articles,  on  the  ground  that  they  are  infringements  of  his  patent, 
and  threatening  legal  proceedings  against  those  who  purchase  them,  until  it  is 
[*349]  proved  that  his  statements  are  untrue  ;  but  as  soon  as  that  is  proved  he 
will  be  restrained,  as  any  further  issue  of  them  cannot  be  bond  fide. 

(332) 


RIVAL    PATENTEES.  261 

Halsey  v.  Brotherhood,  (C.  A.),  19  Ch.  D.  386  ;  51  L.  J.  Ch.  233  ;  30 
W.R.  279  ;  45  L.  T.  640  ;  affirming  the  decision  of  Jessel,  M.  li., 
15  Ch.  D.  514  ;  49  L.  J.  Ch.  786  ;  24  W.  R.  9  ;  43  L.  T.  366. 
The  plaintiffs  moved  for  an  injunction  to  restrain  the  defendants  from  pub- 
lishing or  circulating  statements  that  the  skates  about  to  be  introduced  by  the 
plaintiffs   were   an   infringement   of   the   defendants'   patent.     But  the   Vice- 
Chancellor  (Chatterton)  was  of  opinion  that  Rollins  v.  Hinks  and  Axmann  v. 
Lund  were  virtually  overruled  by  The  Prudential  Insurance  Go.  v.  Knott ;  and 
held  that  he  had  no  jurisdiction  to  restrain  a  publication,  whether  libellous  or 
not,  merely  because  it  may  tend  to  injure  property. 

llamini  rsmith  Skating  Rink  Co.  v.  Dublin  Skating  Rink  Co.,  10  Ir. 
R.  Eq.  235. 
The  defendant  company  had  issued  circulars,  declaring  that  the  plaintiff  was 
wrongfully  using  the  defendant's  labels  upon  his  jars  of  extract  of  meat,  and 
threatening  the  plaintiff 's  customers  with  legal  proceedings  for  buying  and  re- 
selling his  jars  bearing  those  labels  ;  the  plaintiff  applied  for  an  injunction  to 
restrain  the  defendant  from  issuing  such  circulars  ;  but  the  Court  refused  to 
grant  it,  because  it  was  not  satisfied  that  the  statements  complained  of  were 
untrue.     (Chitty,  J.) 

Anderson  v.  Liebig's  Extract  of  Meat  Co.,  45  L.  T.  757. 
Subsequently  Anderson  issued  new  wrappers  for  his  meat  jars,  with  a  photo- 
graph of  Baron  Liebig  and  the  words,  "  This  is  the  only  Genuine  Brand."  The 
meat  company,  whose  brand  was  at  least  as  genuine  as  Anderson's,  thereupon 
applied  for  and  obtained  an  injunction  restraining  him  from  using  such 
wrappers,  although  the  company  had  themselves  issued  misleading  advertise- 
ments.    (Chitty,  J.) 

Liebig's  Extract  of  Meat  Co.,  Limited,  v.  Anderson,  55  L.  T.  206. 
An  injunction  under  similar  circumstances  was  granted  at  the  hearing  by 
Lord  Romilly,  M.  R.,  in 

James  v.  James,  L  R.  13  Eq.  421 ;  41  L.  J.  Ch.  253  ;  26  L.  T.  56a 
And  see  Ihorley's  Cattle  Food  Co.  v.  Massam,  6  Ch.  D.  582  ;  46  L.  J. 
Ch.  713. 
But  as  to  the  necessity  of  an  applicant  for  an  injunction  coming  with  clean 
hands,,  see 

Leather  Cloth  Co.,  Limited,  v.  American  Leather  Cloth  Co.,  Limited, 
4  De  Gex,  Jones  &  Smith,  137  ;  33  L.  J.  Ch.  199.     - 
Where  defendant  has  issued  notices  to  plaintiff's  customers,  asserting  that 
plaintiff  in  selling  certain  goods  is  infringing  defendant's  patent  rights,  it  is  for 
the  plaintiff  to  prove  that  the  defendant's  statements  are  false  ;  and  if  no  mala 
fides  is  proved,  so  that  no  damages  could  be  recovered,  the  Court  will  not  grant 
an  injunction.     If,  however,  in  any  judicial  proceeding,  the  statements  are 
proved  to  be  false  in  fact,  an  injunction  will  be  granted  against  continuing 
them,  as  all  further  publication  would  then  be  mala  fide.     (Kay,  J.) 
Burnett  v.  Tak,  45  L.  T.  743. 
A  motion  was  made  for  an  injunction  to  restrain  the  defendant,  the  printer 
and  publisher  of  the  Electrician  newspaper,  from  publishing  or  selling  any 
copies  of  a  particular  issue  of  that  paper,  which  contained  a  letter  alleged  to  be 
a  libel  [*  350]  on  the  plaintiff's  patent  in  an  electric  lamp  known  as  the  Fyfe 
Main  Lamp.     The  statements  in  the  letter  in  question  were  said  to  be  wholly 
untrue,  and  calculated  to  deter  persons  from  making  use   of   the   plaintiff's 
patent.     Day,  J.,  sitting  as  vacation  judge,  granted  an  interim  injunction. 
Fyfe  v.  Gray,  73  Law  Times  (newspaper),  309. 
The  Court  will  not  grant  an  injunction  to  restrain  the  bond  fide  issue  of  cir- 
culars, warning  persons' that  if  they  buy  of  the  plaintiff  they  will  infringe  the 
defendant's  patent  and  be  liable  to  proceedings,  unless  a  very  strong  prima  facie 
case  be  made  out  showing  that  such  publication  is  in  violation  of  an  express 
contract  between  the  parties  ;  however  much  the  balance  of  convenience  may  be 
in  favour  of  granting  it. 

Societe  Anonyms  des  Manufactures  de   Claces  v.  Tilghman's  Patent 
Sand  Blast  Co.  (C.  A.),  25  Ch.  D.  1 ;  53  L.  J.  Ch.  1  ;  32  W.  R.  71; 
49  L.  T.  451. 
The  plaintiffs  were  the  makers  of  "Rainbow  Water  Raisers  or  Elevators," 

(333) 


262  INTKKIM. 

and  they  commenced  an  action  for  an  injunction  to  restrain  the  defendants  from 
Issuing  a  circular  cautioning  the  public  against  the  use  of  such  elevators  as 
being  direct  infringements  of  certain  patents  of  the  defendants.  The  plaintiffs 
subsequently  gave  notice  of  a  motion  to  restrain  the  issue  of  this  circular  until 
the  trial  of  the  action.  The  defendants  then  commenced  a  cross  action,  claiming 
an  injunction  to  restrain  the  plaintiffs  from  infringing  their  patents.  //</</.  by 
Kay,  J.,  that,  as  there  was  no  evidence  of  maid  fides  on  the  part  of  the  defend- 
ants, they  ought  not  to  be  restrained  from  issuing  the  circular  until  their  action 
had  been  disposed  of,  but  that  they  must  undertake  to  prosecute  their  action 
without  delay. 

Household  and  another  v.  Fairburn  and,  another,  51  L.  T.  498. 
The  law  on  this  point  has  now  been  settled  by  express  legislation  : — •"  Where 
any  person  claiming  to  be  the  patentee  of  an  invention,  by  circulars,  advertise- 
ments, or  otherwise,  threatens  any  other  person  with  any  legal  proceedings  or 
liability  in  respect  of  any  alleged  manufacture,  use,  sale,  or  purchase  of  the 
invention,  any  person  or  persons  aggrieved  thereby  may  bring  an  action  against 
him,  and  may  obtain  an  injunction  against  the  continuance  of  such  threats,  and 
may  recover  such  damage  (if  any)  as  may  have  been  sustained  thereby,  if  the 
alleged  manufacture,  use,  sale,  or  purchase  to  which  the  threats  related  was  not 
in  fact  an  infringement  of  any  legal  rights  of  the  person  making  such  threats  : 
Provided  that  this  section  shall  not  apply  if  the  person  making  such  threats 
with  due  diligence  commences  and  prosecutes  an  action  for  infringement  of  his 
patent." 

46  &  47  Vict.  c.  57,  s.  32. 
On  any  motion  for  an  injunction  under  this  section,  the  applicant  must,  as  a 
condition  precedent,  show  that  there  has  been  no  infringement  on  his  part. 
And  if  in  opposition  to  the  motion  a  case  of  alleged  infringement  is  raised  by 
the  respondents'  affidavits,  an  injunction  will  not  be  granted,  although  the 
respondents'  decline  to  take  legal  proceedings  in  respect  of  such  alleged  infringe: 
ment. 

Barney  v.  United  Telephone  Go.,  28  Ch.  D.  394;  33  W.  R.  576;  52 

L.  T.  573. 

A  threat  by  a  private  letter  is  within  the  section  ;  hence,  where  such  a  threat 

was  made,  but  defendants  nowT  admit  that  plaintiffs  have  not  infringed  their 

{*  351]  patents,  they  will  be  perpetually  restrained  from  making  or  continuing 

threats  of  legal  proceedings 

Driffield  and  East  Riding  Cake  Co.  v.  Waterloo,  &c,  Cake  Co.,  31  Ch. 
I).  938  ;  55  L.  J.  Ch.  391  ;  34  W.  R.  360  ;  54  L.  T.  210. 
On  an  application  for  an  injunction  under  this  section,  it  is  not  open  to  the 
plaintiff  to  dispute  the  validity  of  the  defendant's  patent.     The  issue  must  be 
confined  to  the  question  of  infringement.     (Chitty,  J.) 

Kurtz  v.   Spenee,   33  Ch.  D.  579;  55  L.  J.  Ch.  919;  35  W.  R.  26; 
55  L.  T.  317. 


It  must  be  admitted  that  the  law  laid  down  in  the  above  cases  is 
new  law  ;  and  with  all  respect  to  the  learned  judges  who  decided 
them,  it  may  be  questioned  whether  it  is  good  law.  In  the  first  edi- 
tion of  this  book,  published  in  February,  1881,  the  rule  of  law  in 
force  at  that  date  was  thus  stated  : — "No  injunction  can  be  obtained 
to  prohibit  the  publication  or  republication  on  any  libel,  or  to  restrain 
its  sale."  (Prudent led  A sstt,rance  Co.  v.  Knott,  L.  R.  10  Ch.  142  ;  44 
L.  J.  Ch.  192  ;  23  W.  R.  249  ;  31  L.  T.  866.).  The  matter  must 
first  go  before  a  jury,  who  are  to  decide  whether  the  words  com- 
plained of  are  libellous  or  not.  The  Crown  has  no  authority  to  re- 
strain the  press  ;  aad  the  Courts,  whether  of  law  or  of  equity,  can- 
not, till  after  verdict,  issue  any  injunction  in  respect  of  any  libels, 
save  such  as  are  contempts  of  court."  (Saxby  v.  Easterbrook,  3C. 
P.   D.     339  ;  27  W.  R.  188.)     And  I  venture"  to  think  that  this  is 

(334) 


INTERIM    INJUNCTIONS.  203 

still  the  Law  of  the  land,  and  will  be  upheld  as  such  in  the  House  of 
Lords,  if  the  question  ever  comes  before  that  tribunal. 

There  has,  no  doubt, been  a  conflict  of  authority  on  this  point.  As 
long  ago  as  1742,  it  was  clearly  laid  down  in  Roach  v.  Gar  can,  Re 
Read  and  another,  2  Atk.  409,  that  Courts  of  Equity  had  do  juris- 
diction over  actions  of  libel  and  slander,  whether  public  or  private, 
except  as  contempts  of  their  own  Courts.  The  Courts  of  Common 
Law  had  at  that  time  no  power  to  grant  injunctions  at  all.  No 
doubt  in  the  early  days  of  arbitrary  prerogative  the  Court  of  Star 
Chamber  occasionally  restrained  the  publication  of  works  alleged  to 
be  seditious.  But  Scroggs,  C.  J.,  was  impeached  for  attempting  to 
introduce  the  practice  into  the  King's.  Bench,  in  the  Case  of  Henry 
Carr,  7  Howell's  State  Trials,  1111.  See  Article  III.  8  Howell\s 
State  Trials,  at  p.  198. 

It  is,  however,  stated  in  the  note  to  Southey  v.  Shencood,  2  Mer. 
p.  441,  that  in  1720  in  a  case  of  Burnett  v.  Chetwood,  Lord  Chancel- 
lor Parker  granted  an  injunction  to  restrain  the  printing  and  pub- 
lishing of  a  translation  into  English  of  a  book  written  in  Latin,  and 
which  he  thought  had  better  remain  in  Latin  ;  "  he  looked  upon  it," 
he  said,  "  that  this  Court  had  a  superintendency  [*352]  over  all  books, 
and  might  in  a  summary  way  restrain  the  printing  or  publishing  [of] 
any  that  contained  reflections  on  religion  or  morality."  The  whole 
report  is  of  very  doubtful  authority,  being  merely  a  note  of  the  case 
which  the  reporter  states  he  extracted  from  a  manuscript  volume  of 
uncertain  authorship,  and  which,  he  tells  us,  "may  be  considered  as 
something  curious,"  but  it  appears  from  the  extract  from  the  register 
book  (p.  442)  that  the  application  was  made  by  an  executor  in  order 
to  protect  his  copyright  in  a  book  written  by  his  testator  ;  a  copy 
having  been  surreptitiously  obtained  from  the  testator's  publisher. 
The  decree  was  founded  on  the  statute  8  Anne,  c.  19,  which  vested 
the  property  in  the  book,  and  the  sole  right  of  printing  and  pub- 
lishing the  same,  in  the  executor  of  the  author  :  hence,  the  above 
remark,  if  made,  was  quite  unnecessary  to  the  decision.  An  in- 
junction will,  of  course,  be  granted  to  restrain  any  infringement  of 
a  copyright,  or  of  a  trade-mark  ;  or  as  in  Croft  v.  Day,  7  Beav.  34, 
and  Lord  Byron  v.  Johnston,  2  Mer.  29,  to  prevent  one  man  from 
fraudulently  passing  his  own  goods  off  as  the  goods  of  another  to  the 
prejudice  of  that  other  ;  or,  again,  as  in  Mouth  v.  Webster,  10  Beav. 
501,  to  restrain  an  unauthorized  use  of  the  plaintiff's  name  calcu- 
lated to  deceive  the  public.  But  an  injunction  to  restrain  the  pub- 
lication of  a  libel  or  a  slander  stands  on  a  very  different  footing 
from  any  of  these  cases. 

Again,  in  1810,  in  Du  Bost  v.  Beresford,  2  Camp.  512,  Lord 
Ellenborough,  C.  J.,  in  deciding  that  a  libellous  picture  could  have 
no  legal  value  as  a  work  of  art,  said  :  "  Upon  an  application  to  the 
Lord  Chancellor,  he  would  have  granted  an  injunction  against  its 
exhibition,  and  the  plaintiff  was  both  civilly  and  criminally  liable 
for  having  exhibited  it."  This  remark,  however,  like  that  of  Lord 
Chancellor  Parker,  was  a  mere  obiter  dictum,  and  is  said  to  have 
greatly  surprised  all  practitioners  in  the  Courts  of  Equity.  Mr. 
Howell  was  so  informed  "  on  very  high  authority  ;  and  I  had  appre- 

(335) 


264     "  INTERIM    INJUNCTIONS. 

hended  that  this  must  have  happened  ;  since,  I  believe,  there  is  not 
to  be  found  in  the  books  any  decision  or  any  dictum  posterior  to  the 
days  of  the  Star  Chamber,  from  which  such  doctrine  can  be  deduced, 
either  directly  or  by  inference  or  analogy  ;  unless,  indeed,  we  are 
to  accept  the  proceeding  of  Lord  Ellenborough's  predecessor  Scroggs 
and  his  associates  in  the  case  of  Henry  Carr."  (20  Howell's  State 
Trials,  799.) 

Both  remarks  were  expressly  disavowed  by  Lord  Campbell,  L.  C, 
in  1861,  in  the  case  of  the  Emperor  of  Austria  v.  Day  and  Kossuth, 
3  De  G.  F.  &  J.  217,  239  ;  30  L.  J.  Ch.  690  ;  7  Jur.  N.  S.  630.  "  I 
have,"  he  says,  "  no  hesitation  in  saying  that  Lord  Macclesfield  was 
wrong  when  he  laid  down  in  Burnett  v.  [*353]  Chetwood,  2  Mer. 
441,  that  'the  Court  of  Chancery  has  a  superintendency  over  all 
books,  and  might  in  a  summary  way  restrain  the  printing  or  publish- 
ing any  that  contained  reflections  on  religion  or  morality.'  So  I 
have  no  hesitation  in  saying  that  Lord  Ellenborough  was  wrong 
when  he  laid  down  in  Dubost  v.Beresford,  that  '  the  Lord  Chancel- 
lor would  grant  an  injunction  against  the  exhibitition  of  a  libellous 
picture.'  For  this  language  I  have  the  high  authority  of  Lord 
Eldon,  who,  in  Gee  v.  Pritchard,  2  Swan.  414,  upon  the  question  of 
granting  an  injunction  against  the  publication  of  a  libel  said,  '  The 
publication  of  a  libel  is  a  crime,  and  I  have  no  jurisdiction  to  pre- 
vent the  commission  of  crimes.'  " 

So,  in  Martin  v.  Wright  (1833),  6  Sim.  297,  where  the  defendant 
had  advertised  his  diorama  as  "  Mr.  Martin's  Grand  Picture  of  Bel- 
shazzar's  Feast,  painted  with  dioramic  effect,"  and  the  plaintiff 
prayed  for  an  injunction  to  restrain  such  misrepresentation,  the 
Vice-Chancellor,  Sir  Launcelot  Shadwell,  said  :  "  Then  with  respect 
to  the  defendant  representing  his  copy  as  Martin's  picture,  it  must 
be  either  better  or  worse  ;  if  it  is  better,  Martin  has  the  benefit  of  it; 
if  worse,  then  the  misrepresentation  is  only  a  sort  of  libel,  and  this 
Court  will  not  prevent  the  publication  of  a  libel."  (And  see  the 
remarks  of  Lord  Cottenham,  L.  C,  in  Seely  v.  Fisher  (1841),  11  Sim. 
581,  ante,  p.  344.) 

Again,  in  Clark  v.  Freeman  (1848),  11  Beav.  112  ;  17  L.  J.  Ch. 
142  ;  12  Jur.  149,  Lord  Langdale,  M.  R.,  laid  it  down  most  clearly 
that  a  Court  of  Equity  would  not  interfere  by  injunction  to  prevent 
the  publication  of  a  libel.  "  Now  if  this  Court,"  he  said,  "  had  juris- 
diction in  cases  of  the  kind,  you  must  first  establish  the  offence  at 
law.  A  judge  sitting  here  cannot  decide  it.  If,  after  that  has  been 
done,  you  find  that  an  injury  is  thereby  done  to  the  plaintiff's  prop- 
erty, or  to  his  means  of  subsistence  or  of  gaining  a  livelihood,  I  will 
not  say  that  in  such  a  case  the  Court  might  not  interfere  by  injunc- 
tion and  prevent  the  repetition  of  similar  actions I 

cannot  grant  this  injunction  :  I  cannot  liken  this  case  to  that  of 
Croft  v.  Day,  where  a  man  fraudulently  attempted  to  make  his  own 
goods  pass  off  as  the  goods  of  another,  to  the  prejudice  of  that  other. 
This  the  Court  would  not  allow.  Its  jurisdiction  is  well  established  ; 
but  I  am  afraid  that  if  I  were  to  interfere  as  is  now  asked,  I  should 

be  reviving  the  criminal  jurisdiction  of  the  Star  Chamber 

The  case  of  the  defendant  is  disgraceful  ;  but  I  think  the  granting 

t336i 


JURISDICTION.  .        265 

the  injunction  in  this  case  would  imply  that  the   Court  has  jurisdic- 
tion to  stay  the  publication  of  a  libel,  and  I  cannot  think  it  has." 

So,  in  Fleming  v.  Newton  (1848),  1  II*  L.  C.  303,  Lord  Cotten- 
[*  354]  ham,  L.  C,  was  most  distinctly  of  opinion  that,  whatever 
niceties  might  be  shown  to  exist  in  Scotch  law,  such  an  interference 
with  the  liberty  of  the  press  was  contrary  to  English  law.  After 
stating  that  it  was  not  necessary  for  him  to  give  any  opinion  upon 
the  general  question  of  the  jurisdiction  of  the  Scotch  Courts  in  mat- 
ters of  interdict,  because,  assuming  it  to  be  as  extensive  as  it  was 
claimed  to  be,  he  thought  that  in  the  particular  case  it  had  clearly 
been  improperly  exercised,  so  that  the  general  question  was  not 
necessarily  involved  in  the  appeal  before];  the  House,  his  Lordship 
continues':  "  I  cannot,  however,  avoid  expressing  an  earnest  hope 
that,  if  this  question  should  arise  and  require  a  decision  in  the  Court 
of  Session,  and  no  distinct  rule  should  be  found  already  to  exist  upon 
the  subject,  the  consequences  of  any  rule  to  be  established  for  the 
first  time  will  be  most  carefully  considered  before  such  a  rule  is  laid 
down  ;  and  particularly  that  it  may  be  considered  how  the  exercise 
of  such  a  jurisdiction  can  be  reconciled  with  the  trial  of  matters  of 
libel  aud  defamation  by  juries  under  55  Geo.  III.  c.  42,  or,  indeed, 
with  the  liberty  of  the  press.  That  Act  appoints  a  jury  as  the  proper 
tribunal  for  trial  of  injuries  to  the  person  by  libel  or  defamation  ; 
and  the  liberty  of  the  press  consists  in  the  unrestricted  right  of  pub- 
lishing, subject  to  the  responsibilities  attached  to  the  publication  of 
libels,"  public  or  private.  But  if  the  publication  is  to  be  anticipated 
and  prevented  by  the  intervention  of  the  Court  of  Session,  the  juris- 
diction over  libels  is  taken  from  the  jury,  and  the  right  of  unre- 
stricted publication  is  destroyed.  And  I  must  add  that,  according 
to  the  doctrine  attributed  to  the  Lord  Justice  Clerk,  in  the  printed 
report  of  his  judgment,  the  exercise  of  this  power  would  be  quite 
arbitrary  ;  for  he  considers  that  the  right  to  claim  damages,  if  the 
act  had  been  committed,  is  not  the  test  according  to  which  the  inter- 
dict must  be  granted  or  refused." 

In  this  state  of  the  authorities,  Malins,  V.-C,  in  Springhead  Spin- 
ning Co.  v.  Riley,  L.  R.  6  Eq.  551  ;  37  L.  J.  Ch.  889;  16  W.  R. 
1138  ;  19  L.  T.  64,  and  Dixon  v.  Holden,  L.  R.  7  Eq.  488  ;  17  W. 
R.  482  ;  20  L.  T.  357,  introduced  an  exception  to  the  rule  ;  for  he 
decided  that  a  Court  of  Equity  had  jurisdiction  to  restrain  the 
publication  of  any  document  which  tended  to  the  destruction  or 
deterioration  of  the  plaintiff's  property,  or  even  of  the  plaintiff's 
professional  reputation  by  which  property  is  acquired.  The  decision 
in  Dixon  v.  DTolden  professed  to  follow  that  of  Lord  Langdale,  M.R., 
in  Eouth  v.  Webster,  10  Beav.  56,  in  which  case  an  injunction  was 
granted  to  restrain,  not  indeed  a  libel,  for  there  was  none,  but  an 
improper  and  unauthorized  use  by  the  defendants  of  the  plaintiff's 
name  as  a  trustee  of  the  defendants'  joint-stock  company  ;  whereas 
[*355]  in  Dixon  v.  Holden  the  plaintiff  sought  to  restrain  the 
defendant  from  mentioning  the  plaintiff's  name  in  an  advertisement 
as  a  "solvent  partner  "  in  "a  bankrupt  firm.  And  the  decision  was 
in  no  way  limited  to  trade  libels.  "  In  the  decision  I  arrive  at," 
says  his  Honour,  "  I  beg  to  be  understood  as  laying  down  that  this 

(337) 


200  INTERIM    INJUNCTIONS. 

Court  has  jurisdiction  to  prevent  the  publication  of  any  letter, 
advertisement,  or  other  document,  which,  if  permitted  to  go  on, 
would  have  the  effect  of  destroying  the  property  of  another  person, 
whether  that  consists  of  tangible  or  intangible  property,  whether  it 
consists  of  money  or  reputation.  Professional  reputation  is  the 
means  of  acquiring  wealth,  and  is  the  same  as  wealth  itself." 

In  a  subsequent  case,  in  1872,  Mulkern  v.  Ward,  L.  R.  13  Kq. 
619  ;  41  L.  J.  Ch.  464  ;  26  L.  T.  831,  Wickens,  V.-G,  commented 
very  strongly  on  the  decision  in  Dixon  v.  Jlolden,  as  introducing  a 
"  wholly  new  "  rule,  and  one  contrary  to  the  previous  decisions, 
which  he  therefore  refused  to  follow.  "Surely,"  he  says,  "  if  I 
granted  the  injunction,  I  should  do  more  against  the  liberty  of 
unlicensed  printing,  or,  as  it  is  commonly  called,  the  liberty  of  the 
press,  than  has  ever  been  done  in  any  decided  case,  or  than  properly 
can  be  done  in  this  country  and  in  this  century.  At  any  rate,  I 
am  not  prepared  to  do  it,  and  therefore  I  refuse  the  motion."  (L. 
R.  13  Eq.  at  p.  623.  See  also  Clover  v.  fioyden,  L.  R.  17  Eq.  190; 
43  L.  J.  Ch.  665;  22  W.  R.  254  ;  29  L.  T.  6*39.) 

In  the  next  year,  1873,  the  same  law  was  laid  down  with  equal 
distinctness  in  two  of  the  States  of  America  in  which  English  rules 
of  equity  prevail.  In  T/ie  Singer  Manufacturing  Co.  v.  The 
Domestic  Sewing  Machine  Co.,  49  Georgia,  70  ;  15  Amer.  Rep. 
674,  the  Supreme  Court  of  Georgia  was  prayed  to  grant  an  injunc- 
tion to  restrain  the  defendants  from  falsely  advertising  that  they 
had  won  a  prize  offered  for  the  best  sewing  machine,  for  which 
both  plaintiffs  and  defendants  had  competed,  and  which  had,  in 
fact,  been  awarded  to  the  plaintiffs.  The  judge  below  had  refused 
to  grant  any  such  injunction,  and  on  appeal  the  Supreme  Court 
affirmed  his  decision.  "There  is  no  complaint  that  the  defendant 
is  doing  or  publishing  anything  to  induce  the  public  to  believe  that 

the  machine  he  sells  is  the  same  as  the  complainant's He  is 

not  taking  defendant's  property  ;  he  is  not  infringing  the  plaintiff's 
right  of  property.  He  is  denying — it  may  be  falsely  and  injuri- 
ously denying — plaintiff's  right  to  whatever  credit  the  premium  of 
the  society  gives.  Will  an  injunction  lie  to  prohibit  such  a  wrong? 
It  is  admitted  there  is  no  precedent  for  such  an  injunction  in  Eng- 
land or  America It  is  well  settled  that  an  injunction  will  not 

be  granted  to  restrain  [*356]  slander  or  libel  of  title  or  of  reputa- 
tion. (6  Sim.  297  ;  11  Beav.  112  ;  11  Sim.  582.)  Not  that  it  is 
not  a  wrong  ;  not  that  the  wrong  may  not  be  irreparable,  but  sim- 
ply because  Courts  of  Chancery,  in  the  exercise  of  the  extraordin- 
ary powers  lodged  in  them,  have  uniformly  refused  to  act  in  such 
a  case,  leaving  parties  to  their  remedy  at  law.  The  case  made  by 
the  bill  is  one  of  words  which  are  untrue  in  fact,  and  which  are 
calculated  to  injure  the  credit  of  complainant's  business  and  advance1 

the  business  of  defendant Equity,  it  must  be   remembered, 

will  not  enjoin  every  wrong.  There  are  injuries  done  by  one  man 
to  another  which  no  law  will  remedy.  Telling  lies,  unless  those 
lies  be  of  a  peculiar  character,  is  one  of  such  injuries.  But  there 
are  very  many  wrongs — wrongs  recognizable  and  capable  of  redress 
at  law — that  yet  are  not  such  wrongs  as  a  Court  of   Equity  will 

(338)  " 


JURISDICTION.  267 

enjoin.  Libel  and  slander,  however  illegal  and  outrageous,  will  not 
be  enjoined.  This  is  the  settled  rule.  (High  on  Injunctions,  §693; 
same,  §§23 — 28.)  The  most  that  ean  be  said  of  the  conduct  of  the 
defendant  is  that  he  is  telling  and  publishing  untruths — lies,  if  you 
will — calculated  and  intended  to  help  himself  and  damage  the  com- 
plainant. To  say  that  he  may  be  enjoined  from  doing  this,  is  to 
say  that  the  writ  of  injunction  may  issue  to  restrain  a  Libel  or  to 
stop  slander.  It  is  true  the  Courts  of  Equity  constantly  refuse  to 
lay  down  any  absolute  limitation  to  its  power  to  issue  this  writ. 
But  this  oidy  means  that  cases  coming  within  the  principles  on 
which  the  Court  has  long  acted  are  not  beyond  its  power,  simply 
because  the  facts  are  novel  or  the  injury  peculiar.  The  principle 
is,  that  to  authorize  the  writ  there  must  be  an  irreparable  expected 
injury  to  a  property  right.  It  is  a  perversion  of  language  to  say 
that  the  complainant    has    a    property  right    in    the  truth  of    this 

report For  these  reasons  we  do  not  think  the  complainant 

entitled  to  an  injunction." 

In  November,  1873,  in  Boston  Diatite  Co.  v.  Florence  Manu- 
facturing Co.  and  others,  114  Mass.  09,  the  same  point  came  before 
the  Supreme  Judicial  Court  of  Massachusetts  on  a  demurrer  to  a 
bill  in  equity,  praying  that  the  defendants  might  be  restrained  from 
representing  that  the  goods  manufactured  by  the  plaintiffs  were  an 
infringement  of  patents  owned  by  the  defendants,  and  that  the 
defendants  were  suing  plaintiffs  for  such  infringement.  Gray,  C.  J. 
in  delivering  the  judgment  of  the  Court,  which  was  based  entirely 
upon  the  English  cases  cited  above,  said  :  "  The  jurisdiction  of  a 
Court  of  Chancery  does  not  extend  to  cases  of  libel  or  slander,  or 
of  false  representations  as  to  the  character  or  quality  of  the  plain- 
tiff's property,  or  as  to  his  title  thereto,  which  involve  no  breach  of 
trust  or  of  contract.  .  .  .  The  opinions  of  Vice-Chancellor  Malins, 
in  /Springhead  Spinning  Co.  v.  [*357]  Riley,  in  Dixon  v.  Ilolden, 
and  in  Rollins  v.  Ilinks  appear  to  us  to  be  so  inconsistent  with 
these  authorities,  and  with  well-settled  principles,  that  it  would  be 
superfluous  to  consider  whether  upon  the  facts  before  him  his 
decisions  can  be  supported."     Demurrer  sustained  and  bill  dismissed. 

The  same  law  had  been  laid  down  in  earlier  American  cases,  such 
as  Brandreth  v.  Lance  (1839),  8  Paige  (New  York  Chy.),  24  ;  and 
Hoyt  v.  McKenzie  (1848),  3  Barb.  Ch.  Cases  (New  York),  320. 

All  doubts  on  the  point,  if  there  were  any,  were  finally  set  at  rest 
by  the  Court  of  Appeal  in  Prudential  Assurance  Co.  v.  Knott,  L. 
R.  10  Ch.  142  ;  44  L.  J.  Ch.  192  ;  23  W.  R.  249  ;  31  L.  T.  866  ; 
where  a  very  strong  Court  (Lord  Cairns,  L.  C,  and  James  and 
Mellish,  L.JJ.),  decided  that  the  Court  of  Chancery  has  no  jurisdic- 
tion to  restrain  the  publication  of  a  libel  as  such,  even  if  it  be  in- 
jurious to  property  ;  and  expressly  overruled  Dixon  v.  Ilolden  and 
Springhead  Spinning  Co.  v.  Riley. 

The  judgment  of  the  Lord  Chancellor  is  most  clear  and  convinc- 
ing on  the  point  : — "  Now,  the  comments  and  expressions  in  this 
pamphlet  either  do  amount  to  a  libel  upon  the  company,  or  do  not. 
If  they  do  not  amount  to  a  libel,  and  are  therefore  innocuous  and 
justifiable  in  the  eye  of  a  Court  of  Common  Law,  I  am  at  a  loss  to 

(339) 


208  INTERIM    INJUNCTIONS. 

understand  upon  what  principle  the  Court  of  Chancery  could  pos- 
ibly  interfere  as  a  censor  raorum  or  critic  to  restrain  the  publica- 
tion of  statements  or  expressions  which  would  he  held  justifiable  in 
a  Court  of  Common  Law.  If,  on  the  other  hand,  these  comments 
do  amount  to  a  libel,  then,  as  I  have  always  understood,  it  is  clearly 
settled  that  the  Court  of  Chancery  has  no  jurisdiction  to  restrain 
the  publication  merely  because  it  is  a  libel.  There  are  publications 
which  the  Court  of  Chancery  will  restrain,  and  those  publications, 
as  to  which  there  is  a  foundation  for  the  jurisdiction  of  the  Court 
of  Chancery  to  restrain  them,  will  not  be  restrained  the  less  because 
they  happen  also  to  be  libellous.  ....  It  is  attempted  to  give  a 
colour  to  the  application  by  saying  that  these  are  libellous  publica- 
tions which  will  injure  property,  and  then,  when  that  proposition  is 
further  defined,  it  is  said  that  the  business  of  the  company,  the 
goodwill  of  the  company,  is  property  ;  that  the  company  in  its 
trade  will  be  injured,  and  that,  therefore,  the  interference  of  the 
Court  is  asked  for  the  protection  of  property.  But  with  regard  to 
nine  out  of  ten  libels  the  same  thing  might  be  said.  The  cases  in 
which  actions  are  brought  for  libel  are  usually  cases  where  things 
are  written  of  men  or  corporations,  which  have  an  effect  upon  their 
character  and  upon  their  trade  or  business,  or  their  character  as 
connected  with  trade  or  business  ;  but  no  case  can  be  [*  358]  pro- 
duced in  which,  in  those  circumstances,  the  Court  of  Chancery  has 
interfered.  Not  merely  is  there  no  authority  for  this  application, 
but  the  books  afford  repeated  instances  of  the  refusal  to  exercise 
jurisdiction.  There  are  the  observations  of  Lord  Eldon  in  Gee  v. 
Pritchard ;  the  observations  of  Lord  Campbell  in  the  case  of  the 
Emperor  of  Austria  v.  Bay  ;  there  is  the  dictum  of  Lord  Lang- 
dale  in  the  case  of  Clark  v.  Freeman,  which  stands  irrespective  of 
any  comments  which  may  be  made  upon  the  decision  of  that  partic- 
ular case  ;  there  is  the  observation  of  the  late  Vice-Chancel  lor  of 
England  in  Martin  v.  Wright ;  and  there  are  the  observations  of 
the  late  Vice-Chancellor  Wickens  in  Mulkern  v.  Ward.  Over  and 
above  those,  there  is  the  decision  of  the  House  of  Lords  in  Fleming 
v.  Newton,  and  it  is  clear  to  my  mind,  from  reading  the  opinion  of 
Lord  Cottenham,  whose  was  the  only  opinion  pronounced  in  that 
case,  that  the  whole  of  it  proceeds  on  one  footing.  He  considered 
that  the  case,  being  Scotch,  some  nicety  of  Scotch  law  might  be 
made  to  appear  in  the  Courts  of  Scotland  which  would  entitle  them 
to  interfere  with  the  publication  complained  of  in  that  case,  but 
that  unless  some  such  feature  of  Scotch  law  could  be  shown,  no 
such  interference  could,  upon  the  general  principles  of  English  law, 
be  permitted.  Now,  the  only  shadow  of  authority  the  other  way 
is  in  the  case  of  Dixon  v.  Ilolden,  decided  by  Vice-Chancellor 
Malins  in  the  year  1869.  I  say  nothing  about  the  decision  in  that 
particular  case,  and  I  do  not  mean  to  say  that  the  decision  is  not 
capable  of  being  maintained.     It  professes  to  proceed  mainly  upon 

a  case  of  Routh  v.  Webster The  authorities  cited  are  :  the 

case  of  Fleming  v.  Newton,  which  appears  to  me  to  be  an  authority 
exactly  to  the  contrary  ;  the  case  of  JZonth  v.  Webster,  which  was 
an  authority  for  preventing  the  improper  use   of  a  man's  name 

(340) 


JUDICATURE    ACT. 


269 


against  his  will  ;  the  case  of  Clark  v.  Freeman,  where  the  injunc- 
tion was  refused,  and  where  Lord  Langdale  said  the  Court  would 
not  interfere  to  prevent  a  libel  ;  and  the  only  other  case  mentioned, 
Springhead  Spinning  Co.  v.  Riley,  decided  by  the  Vice-Chancellor 
himself,  upon  which  of  course  the  learned  judge  must  be  taken  to 
have  expressed  the  same  opinion  as  he  expressed  in  the  case  oi 
Dixon  v.  JBblden.  I  am  unable  to  accede  to  these  general  proposi- 
tions. They  appear  to  me  to  be  at  variance  with  the  setth  d  prac- 
tice and  principles  of  this  Court,  and  I  cannot  accept  them  as  an 
authority  for  the  present  application.  I  think  that  this  appeal 
must  be  refused  with  costs."  Lord  Justice  James  was  of  the  same 
opinion.  "I  think  it  is  right,"  he  says,  "  to  express  my  entire  con- 
currence in  the  views  just' stated  by  the  Lord  Chancellor.  I  think 
that  the  Vice-Chancellor  Malins,  hi  that  case  of  Dixon  v.  Ilolden, 
was,  by  his  desire  to  do  what  j*  359]  was  right,  led  to  exaggerate 
the  jurisdiction  of  this  Court  in  a  manner  for  which  there  was  no 
authority  in  any  reported  case,  and  no  foundation  in  principle.  I 
think  it  right  to  say  that  I  hold  without  doubt  that  the  statement 
of  the  law  in  that  case  is  not  correct."  Lord  Justice  Mellish  was 
"  entirely  of  the  same  opinion." 

The  decision  in  Prudential Asssurance  Co.  v.  Knott  was  followed 


Rink  Co.,  10  Ir.  R.  Eq.  235.  Lord  Justice  James  remarked  in  the 
former  case  :  "  The  publication  under  such  circumstances  can  hardly 
be  a  libel,  and  even  if  it  was,  there  is  abundance  of  authority  that 
this  Court  has  no  jurisdiction  to  restrain  the  publication  of  a  libel 
merely  because  it  is  a  libel."  (L.  R,  10  Ch.  at  p.  302.)  It  must  be 
taken,  therefore,  that,  at  the  date  of  the  Judicature  Act  coming  into 
operation,  it  was  clear  law  that  no  Court  of  Equity  had  any  power 
to  grant  an  injunction  in  a  case  of  libel  or  slander.  Vice-Chancel- 
lor  Malins,  however,  appeared  to  retain  his  former  opinion  ;  for  in 
Thorley's  Cattle  Food  Co.  v.  Massam,  6  Ch.  D.  582  ;  46  L.  J.  Ch. 
713,  he  held  that  the  decision  of  the  Court  of  Appeal  was  in  some 
way  controlled  or  overruled  by  sub-s.  8  of  s.  25  of  the  Judicature 
Act,  1873,  which  had  come  into  force  in  the  meantime  ;  and  that 
under  that  section  any  Court  had  power,  before  even  a  statement  of 
claim  was  delivered,  to  grant  an  injunction  "  to  prevent  unfair  trad- 
ing, to  prevent  the  issuing  of  a  falsehood  to  the  detriment  of 
another."  However,  in  deference  to  the  decision  in  the  Prudential 
Assurance  Co.  v.  Knott,  he  refused  the  application  made  to  him,  and 
onlv  granted  the  injunction  when  the  matter  came  before  him  on 
the  final  hearing.  (14  Ch.  D.  763  ;  28  W.  R.  295  ;  41  L.  T.  524.) 
But  it  has  since  been  most  clearly  laid  down  by  James,  L.  J.,  in 
Day  v.  Brownrigg,  10  Ch.  D.  307  ;  48  L.  J.  Ch.  173  ;  27  W.  R. 
217  ;  39  L.  T.  226,  553,  that  sub-s.  8  of  s.  25  of  the  Judicature  Act 
in  no  way  alters  the  principles  on  which  a  Court  of  Equity  should 
act  in  granting  injunctions,  in  which  view  Jessel,  M.  R.,  apparently 
concurred.  And  Lord  Coleridge,  C.  J.,  appears  to  be  of  the  same 
opinion  in  Saxby  v.  Fasterbrook,  3  C.  P.  D.  343  ;  27  W.  R.   188. 

(341) 


270  INTERIM    INJUNCTIONS. 

The  late  Master  of  the  Rolls,  according  to  Lindley,  J.,  3  C.  P.  D.  342, 
refused  to  follow  the  dictum  of  Malins,  V.-C,  on  the  interlocutory 
application  in  T/iorleifs  Cattle  Food  Co.  v.  Massam  (probably  in 
(Hinrichs  v.  Berndes,  Weekly  Notes  for  1878,  p.  11).  In  Bed- 
dow  v.  Beddow,  9  Ch.  D.  89  ;  47  L.  J.  Ch.  588  ;  20  W.  R.  570, 
Jessell,  M.  R.,  pointed  out  that,  while  the  jurisdiction  of  the  Court 
of  Chancery  to  grant  an  injunction  [*  360]  was  limited  by  certain 
rules  of  settled  practice,  the  Common  Law  Courts  had  a  most 
extensive  power  vested  in  them  by  ss.  79,  81,  and  82  of  the  Common 
Law  Procedure  Act  ;  that  every  division  of  the  High  Court  has 
now  that  power  ;  that  such  power  was  only  limited  by  the  words 
"  just  or  convenient  ;  "  that  nothing  could  be  convenient  which  was 
unjust  ;  and  that  what  is  just  "  must  be  decided  not  by  the  caprice 
of  the  judge,  but  according  to  sufficient  legal  reasons  or  on  settled 
legal  principles."  In  G«skia  v.  Balls,  however  (C.  A.),  13  Ch.  D. 
329  ;  28  W.  R.  552,  Thesiger,  L.  J.,  remarked  :  "It  is  said  that  the 
Judicature  Act  alters  the  principles  on  which  the  Court  is  to  pro- 
ceed in  such  cases  as  the  present.  I  see  no  ground  for  that  conten- 
tion. The  Act  has  somewhat  enlarged  the  powers  of  the  Court, 
but  in  the  matter  of  injunctions  it  has  done  nothing  to  alter  the 
principles  which  have  been  laid  down  as  to  the  exercise  of  its 
powei-s,  where  principles  have  been  established  as  being  just  and- 
convenient."  In  Bicksv.  Brooks,  15  Ch.  D.  at  p.  25,  Bacon,  V.-C, 
says  :  "I  do  not  believe  that  s.  25,  sub-s.  8,  has  added  in  the  slight- 
est degree  to  the  power  of  this  Court  to  grant  an  injunction."  In 
North  London  Rcdl.  Co.  v.  G.  N.  Bail.  Co.,  11  Q.  B.  D.  at  pp.  37, 
38,  Brett,  L.  J.,  says  :  "  It  seems  to  me  that  the  words  '  just  or  con- 
venient '  do  not  increase  the  power  of  any  part  of  the  High  Court 
to  the  extent  of  altering  the  rights  of  parties  so  as  to  give  to  either 
a  right  which  did  not  exist  in  law  at  all  before  the  Judicature  Act. 
Therefore,  in  my  opinion,  there  is  nothing  in  the  Judicature  Act 
which  enables  any  part  of  the  High  Court  to  issue  an  injunction  in 
a  case  in  which,  before  the  Judicature  Act,  there  was  no  legal 
right  on  the  one  side,  or  no  legal  liability  on  the  other  at  law  or  in 
equity."  And  Cotton,  L.  J.,  says  in  the  same  case  (at  p.  40)  :  "  In 
my  opinion  the  sole  intention  of  the  section  is  this  :  that  where 
there  is  a  legal  right  which  was,  independently  of  the  Act,  capable 
of  being  enforced  either  at  law  or  in  equity,  then,  whatever  may 
have  been  the  previous  practice,  the  High  Court  may  interfere  by 
injunction  in  protection  of  that  right.  But  undoubtedly  one  is 
bound  to  consider  the  cases  which  have  been  referred  to  in  which 
it  is  said  that  a  differeut  interpretation  had  been  put  upon  this 
section  by  the  Master  of  the  Rolls.  In  my  opinion  the  Master  of 
the  Rolls  does  not  in  any  one  of  them  lay  down  any  principle  con- 
trary to  that  which  I  have  stated  is  the  true  principle  of  the  Act." 
And  this  case  was  acted  on  and  followed  in  London  &  Blackwall 
Rail.  Co.  v.  Cross  (C.  A.),  31  Ch.  D.  354  ;  55  L.  J.  Ch.  313  ;  54 
L.  T.309. 

Hence  it  is  impossible  to  contend  that  the  Judicature  Act  created 
any  jurisdiction  to  grant  injunctions  in  cases  of  libel  or  slander, 
which  [*361]  did  not  exist  before  the  Judicature  Act,  either  at  law 

(342) 


COMMON    LAW    PROCEDURE    ACT.  2  7  1 

or  in  equity.  That  there  was  no  jurisdiction  in  equity  to  grant 
an  in  junction  on  an  interlocutory  motion  is  clear  from  the 
cas.'  of  Prudential  Assurance  Go.  v.  Knott,  which  still  remains 
of  unimpaired  authority.  Can  it  be  said  that  a  Court  of  Com- 
mon Law  had  such  power  before  the  Judicature  Act?  Cer- 
tainly no  Court  of  Common  Law  ever  exercised  such  a  power  :  no 
one  ever  applied  to  a  Common  Law  Court,  lor  such  an  injunction.  It 
would,  1  think,  have  greatly  surprised  the  judges  of  the  Queen's 
Bench  or  Common  Pleas  or  the  barons  of  the  Exchequer  to  learn  that 
they  had  jurisdiction  to  restrain  the  publication  of  an  alleged  libel  on 
an  interlocutory  application,  as  well  as  after  verdict,  while  the  Courts 
of  Equity  had  no  jurisdiction  to  grant  an  injunction  in  either  case. 

It  may  be  doubted  whether  the  words  of  sects.  79  and  82  of  the 
Common  Law  Procedure  Act,  1854,  are  wide  enough  to  include  an 
application  to  restrain  the  publication  of  a  libel.  In  Sutton  v.  South 
Eastern  Rail.  Co.,  L.  R.  1  Ex.  32  ;  4  II.  &  C.  825  ;  35  L.  J.  Exch. 
38  ;  14  W.  R.  133  ;  II  Jur.  N.  S.  935  ;  13  L.  T.  438  ;  Pollock,  C. 
B.  stated  his  opinion  that  the  Court  could  not  grant  an  injunc- 
tion unless  either  a  breach  of  contract  or  an  injury  to  perma- 
nent property  was  shown.  No  one  supposed  that  those  sections 
had  given  a  Court  of  Common  Law  more  extensive  powers  than 
were  possessed  by  a  Court  of  Equity.  In  fact,  it  was  expressly 
decided  in  Mines  Royal  Society  v.  Magney,  10  Ex.  489  ;  24  L.  J. 
Ex.  7,  that  the  powers  so  conferred  were  less  extensive  than 
those  possessed  by  the  Court  of  Chancery,  being  confined  to 
cases  in  which  a  Court  of  Equity  would  grant  an  injunction  with- 
out terms.  The  object  of  the  section  was,  as  Channell,  B.,  says  in 
Sutton  v.  South  Eastern  Rail.  Co.,  supra,  "  to  save  the  suitor  from 
the  delay  and  expense  which  would  be  entailed  on  him  if,  to  obtain 
redress,  he  were  compelled  to  have  recourse  to  a  Court  of  Equity." 
On  every  application  for  an  injunction  at  common  law,  the  plaintiff 
had  at  least  to  prove  that  a  Court  of  Equity  would  have  granted  him 
such  relief.  Moreover,  at  common  law,  the.  Court  had  always  the 
greatest  reluctance  to  anticipate  the  finding  of  the  jury  in  an  action 
of  libel  or  slander.  "  Libel  or  no  libel,  since  Fox's  Act,  is  of  all 
questions  peculiarly  one  for  a  jury  ;  and  I  can  well  understand  a 
Court  of  Equity  declining  to  interfere  to  restrain  the  publication 
of  that  which  has  not  been  found  by  a  jury  to  be  libellous." 
(Per  Lord  Coleridge,  C.  J.,  in  Saxby  v.  Easterbrook).  With 
the  judgment  of  Lord  Cottenham,  L.  C,  in  Fleming  v. 
JVewton,  ante,  p.  354,  before  them,  no  Court  of  Common  Law 
would  ever  have  restrained  the  publication  of  libel  before 
verdict.  There  were,  therefore,  "  sufficient  legal  reasons  "  and  "  set- 
tled legal  principles "  which  prevented  the  Common  Law 
[*3G2]  Courts  from  ever  granting  such  injunctions  :  hence,  even  ad- 
mitting the  authority  Beddow  v.  Beddow,  it  is  neither  "  just  "  nor 
"  convenient "  that  such  injunctions  should  be  granted  now. 

Moreover,  these  sections  are  now  repealed  by  the  Statute  Law  Re- 
vision Act,  1883  (46  &  47  Vict.  c.  49),  though  this  repeal  would  not 
"  affect  any  jurisdiction  or  principle,  or  rule  of  law  or  equity,  estab- 
lished or  confirmed  "  by  them  if  there  were  any. 

(343) 


INTEKIM    INJUNCTIONS. 


In  conclusion,  I  must  refer  to  one  question  raised  by  Fry,  J.,  in 
Thomas  v.  Williams,  14  Ch.  I).  864  ;  49  L.  J.  Ch.  005  ;  28  W.  R.  983  ; 
43  L.  T.  91.  To  the  actual  decision  in  that  ease  no  one  can  take 
exception.  It  was  a  case  of  trade  libel,  and  the  plaintiff  asked  for 
an  injunction  to  restrain  the  publication  of  circulars  injurious  to  his 
business.  The  defendant  was  entitled  to  have  the  case  tried  by  a 
judge  and  jury  ;  but  he  neglected  to  claim  a  jury  at  the  proper 
time.  He  waited  till  all  the  evidence  on  both  sides  had  been  put 
in, -and  then  applied  at  the  final  hearing  to  change  the  mode  of  trial. 
Fry,  J.,  decided  that  this  application  was  made  too  late,  and  that 
he 'had  jurisdiction,  sitting  alone,  to  try  the  cause,  and  to  grant  an 
injunction,  should  he  think  fit,  which  no  one  would  now  dispute. 
The  defendant  had  in  fact  tacitly  consented  to  his  lordship  being 
both  judge  and  jury.  But,  incidentally,  Fry,  J.,  remarked,  "  It  was 
urged  that  the  plaintiff  is  suing  upon  a  libel,  and  that  since  Fox's 
Act  no  relief  can  be  given  by  any  Court  upon  a  libel  unless  the 
libel  has  been  in  the  first  place  submitted  to  the  decision  of  a  jury. 
That  objection  appears  to  me  entirely  untenable,  because,  when 
Fox's  Act  is  looked  at,  it  is  plain  that  it  applies  only  to  proceed- 
ings by  way  of  criminal  information  or  indictment  for  libel, 
and  has  nothing  whatever  to  do  with  civil  actions  based  upon  the 
libel." 

This  is  literally  true,  no  doubt  ;  but  I  wholly  deny  the  correct- 
ness of  the  head-notes  which  draws  from  this  remark  the  inference 
that  "the  defendant  in  a  civil  action  for  libel  has  the  same  right  to 
a  trial  by  jury  as  the  defendant  in  any  other  civil  action  ;  he  has 
no  higher  right."  For  Fox's  Act  laid  down  no  new  principle  ;  the 
procedure  which  it  rendered  imperative  in  criminal  cases  was 
already,  before  that  enactment,  the  invariable  rule  in  all  civil  cases, 
and  has  remained  so  ever  since  :  it  had,  in  earlier  days,  been  the 
rule  in  criminal  cases  also.  As  Littledale,  J.,  says,  in  Baylis  v. 
Lawrence  (11  A.  &  E.  at  p.  925),  "  Although  that  Act  applied  more 
particularly  to  criminal  cases,  yet  I  know  no  distinction  between 
the  law  in  criminal  cases  and  that  in  civil,  in  this  respect.  There- 
fore that  which  lias  been  declared  to  be  law  in  criminal  cases  is  the 
law  in  civil  cases."  And  see  Parmiter  v.  Coupland,  0  M.  &  W.  at 
p.  108.)  The  discovery,  [*  363]  therefore,  that  Fox's  Act  applies 
only  to  criminal  cases  in  no  way  impairs  the  right  of  a  defendant 
to  demand  that  the  question  of -libel  or  no  libel  be  submitted  to  a 
jury,  and  not  decided  against  him  by  the  judge  alone. 

In  none  of  the  decisions  since  Thomas  v.  Williams  has  the  ques- 
tion of  jurisdiction  ever  been  seriously  considered.  In  Quartz  Hill 
Gold  Mining  Co.  v.  Beall  (20  Ch.  D.  501  ;  51  L.  J.  Ch.  874  ;  30 
W.  R.  583  ;  46  L.  T.  746),  Mr.  Higgins,  Q.  C,  for  the  plaintiff,  did 
indeed  contend  that  there  was  no  jurisdiction  to  grant  an  injunc- 
tion on  an  interlocutory  application.  But  the  only  case  he  cited  to 
the  Court  was  Ilinrichs  v.  Berndes,  in  the  Weekly  Notes,  where- 
upon the  Master  of  the  Rolls  interposed  with  the  remark,  "You  had 
better  go  to  the  merits.  There  is  no  doubt  about  the  jurisdiction," 
and  thereupon  the  learned  counsel,  having  an  overwhelming  case  on 
the  merits,  very  wisely  followed  his  Lordship's  advice  and  succeeded. 

(344) 


r's    AfT.  273 


POX'S    ACT 


It  is  always  somewhat  ungracious  to  argue  that  the   Court  bus  no 
jurisdiction;  it  is  pleasanter  and   generally  wiser  to  contend  that 

the  present  case  is  not  one  in  which  the  Court  will  exercise  its 
powers.  The  leading  case  on  the  point — Prudential  Assurance  Co. 
v.  Knott — was  never  cited  to  the  Court,  nor  any  of  the  other  cases 
relied  on  above.  And  then  the  Master  of  the  Rolls  and  Lords  .lust  ices 
Baggallay  and  Lindley  gave  judgment  on  insufficient  materials,  as 
I  think,  expressing  their  clear  convict  ion  that  the  Court  had  such 
jurisdiction  under  sects.  79  and  82  of  the  Common  Law  Procedure 
Act  of  1S5  4.  In  Hilly.  Hart  Bavies,  Cookson,  Q.  C,  is  reported 
as  stating  (21  Ch.  I).  at  p.  799),  ''Prudential  Assurance  Go.  v. 
Knott  is  no  longer  law,"  and  for  that  proposition  he  cites  Thomasv. 
Williams  and  Bedlowv.  Bedlow;  this  proposition  was  apparently  not 
denied  by  counsel  for  the  defendants  ;  and  Kay,  J.,  in  his  judgment, 
treated  it  as  clear  law.  "  As  to  the  law,"  he  says,  "  I  have  no  doubt 
whatever  about  it.  It  seems  to  me  that  it  is  perfectly  settled  that 
any  libel  which  is  calculated  to  injure  another  man  in  bis  trade,  or  a 
trading  company,  will  be  restrained  by  injunction,  and  although  there 
has  been,  it  is  said,  no  reported  case  which  applies  that  law  and 
practice  to  a  friendly  society  or  joint  stock  company,  I  have  not  the 
least  doubt  that  it  is  as  applicable  to  the  case  of  a  friendly  society 
or  joint  stock  company  as  it  is  to  an  individual  trader.1' 

When  it  came  to  asking  for  an  injunction  to  restrain  a  slander  in 
Hermann  Loog  v.  Bean,  26  Ch.  D.  306  ;  53  L.  J.  Ch.  1128  ;  32  W. 
R.  994  ;  51  L.  T.  442  ;  48  J.  P.  708,  counsel  for  the  defense  did  at 
last  make  a  stand.  Mr.  Oswald  argued  stoutly  that,  "  oral  slan- 
der is  only  fit  to  be  tried  before  a  jury.  There  is  only  one  case  in 
which  [*  364]  the  Court  has  interfered  by  interlocutory  injunction 
against  a  written  libel,  and  there  is  no  case  in  which  it  has  inter- 
fered at  all  to  restrain  oral  statements."  But  it  was  now  too  late. 
Cotton,  L.  J.,  says,  "  The  Court  has  of  late  granted  injunctions  in 
cases  of  libel,  and  why  should  it  not  also  do  so  in  cases  of  slander  ? 
....  The  defendant — though,  no  doubt,  the  tongue  is  an  un- 
ruly member  to  govern— must  take  care  that  he  keeps  his  tongue  in 
order,  and  does  not  allow  it  to  repeat  those  statements  which  he  is 
by  the  injunction  restricted  from  uttering."  Bowen,  L.  J.,  similarly 
asks,  "can  there  be  any  distinction  in  principle  between  a  slander 
which  is  contained  in  a  written  document,  and  a  slander  which  is 
not  ?  "  Similarly,  other  judges  hereafter  will  ask:  If  the  Court  has 
power  to  restrain  slander's  injurious  to  a  trader,  why  not  also  slan- 
ders injurious  to  a  lawyer  or  a  doctor,  to  a  magistrate  or  a  judge,  to  a 
nobleman  or  a  cabinet  minister '?  If  we  may  order  a  man  to  hold  his 
tongue  in  one  class  of  actionable  slanders,  why  not  in  all  ?  To  charge 
a  man  with  crime  is  surely  a  more  serious  offence  than  to  throw 
doubts  on  his  solvency.  Prevention  is  better  than  cure.  Bonijudi- 
cis  est  ampliare  jurisdiction  em. 

Not  a  word  is  said  as  to  jurisdiction  in  any  of  the  later  cases. 
These  decisions  have  been  i*eceived  with  respectful  astonishment 
in    America  (Greene  v.  JV.   Y.  Dealers'1  Protection  Association,  39 
Hun.  (46  New  York  Supr.  Ct.)  300),  but  have  been  followed  in  Ire- 
land in  Punch  v.  Boyd  and  others,  16  L.  R.  Ir.  476. 

18  LI3.  &  SLAN.  (?45) 


274  INTERIM    INJUNCTIONS. 

I  must  admit,  therefore,  that  it  is  now  settled  practice  in  the 
Chancery  Division  to  grant  injunctions  to  restrain  libels  and  slanders 
on  an  interlocutory  application  ;  but  I  think  it  is  my  duty  to  state 
my  opinion,  for  what  it  is  worth,  that  such  practice  is  an  unconsti- 
tutional innovation,  and  a  violation  of  the  liberty  of  the  press  and 
of  the  right  of  free  speeeh. 


(346) 


CHAPTER  XII.  l  36o| 


COSTS. 


If  an  action  of  slander  or  libel  be  tried  by  a  jury,  the  costs  always 
follow  the  event  unless  the  Judge  before  whom  such  actios  is  tried 
or  the  Court  shall  for  good  cause  otherwise  order.  (Order  LXV. 
r.  1.)  If  by  any  chance  such  an  action  be  tried  by  a  judge  alone 
(which  it  very  seldom  is,  except  in  the  case  of  trade  libels  ;  Thomas 
v.  Williams,  14  Ch.  D.  8(34  ;  49  L.  J.  Ch.  605  ;  28  W.  R.  983  ;  43 
L.  T.  91),  the  costs  are  absolutely  in  his  discretion.  The  provisions 
of  the  County  Courts  Act,  1867  (30  &  31  Vict.  c.  142,  s.  5,)  no 
longer  apply  to  actions  of  libel  or  slander,  since  s.  67  of  the 
Judicature  Act,  1873,  came  into  operation  :  for  no  action  of  either 
slander  or  libel  can  be  brought  in  the  County  Court,  except  by 
consent. 

Formerly  the  provisions  of  the  County  Court  Act  applied  to  all 
actions,  whether  they  could  be  brought  in  the  County  Court  or  not  ; 
the  words  of  the  Act  being  wider  than  the  Legislature  intended. 
(Sampson  v.  Mackay,  L.  R.  4  Q.  B.  643  ;  10  B."&  S.  694  ;  38  L.  J. 
Q.  B.  245  ;  17  W.  R.  883  ;  20  L.  T.  807  ;  Gray  v.  West  exux.,  L.  R. 
4  Q.  B.  175  ;  9  B.  &  S.  196  ;  38  L.  J.  Q.  B.  78  ;  17  W.  R.  497  ;  20 
L.  T.  221  ;  Craven  v.  Smith,  L.  R.  4  Ex.  146  ;  38  L.  J.  Ex.  90  ;  17 
W.  R.  710  ;  20  L.  T.  400  ;  Kent  v.  Lewis,  21  W.  R.  413.)  Formerly 
also  the  provisions  of  Lord  Denman's  Act  (3  &  4  Vict.  c.  24,  s.  2) 
applied  to  actions  of  slander  and  libel,  and  therefore  a  plaintiff  who 
recovered  less  than  40s.  damages  could  not  recover  any  costs  whatever 
from  the  defendant  unless  the  judge  immediately  certified  on  the 
record  that  the  slander  or  libel  was  wilful  and  malicious.  But  even 
if  the  judge  certified  both  that  the  action  was  one  fit  to  be  tried  in 
the  Superior  Court,  and  also  that  the  slander  was  wilful  and  malicious, 
so  as  to  take  the  case  out  of  both  the  30  &  31  Vict.  c.  142,  s.  .5,  and 
[*366]  the  3  &  4  Vict.  c.  24,  s.  2,  still  no  certificate  could  enable  a 
plaintiff  to  get  more  costs  than  damages  if  he  sued  for  a  slander 
actionable  per  se,  and  recovered  less  than  40.9.  (Evans  v.  Bees,  9  C. 
B.  N.  S.  391  ;  30  L.  J.  C.  P.  16  ;  Marshall  v.  Martin,  L.  R.  5  Q. 
B.  239  ;  39  L.  J.  Q.  B.  85  ;  18  W.  R  378  ;  21  L.  T.  788.)  For  the 
relentless  words  of  the  21  Jac.  I.  c.  16,  contain  no  proviso  enabling 
a  judge  to  make  any  exemption  from  the  imperative  rule  that  a 
plaintiff,  suing  on  the  case  for  slanderous  words,  and  recovering  less 
than  40.9.,  shall  have  "  only  so  much  costs  as  the  damages  so  given 
or  assessed  amount  unto."  This  statute,  21  Jac.  I.  c.  16,  was  held 
to  apply  only  to  words  actionable  p>er  se,  and  not  to  actions  of  libel, 

(347) 


276  COSTS. 

of  slander  of  title,  of  scandalum  magnatum,  or  where  the  words 
are  actionable  only  by  reason  of  special  damage  alleged. 

But  both  the  21  Jac.  I.  c.  10,  and  the  3  &  4  Vict.  c.  24,  s.  2,  and  all 
special  Acts  relating  to  costs,  are  now  repealed  by  s.  33  of  the 
Judicature  Act,  1875  (Parsons  v.  Tinling,  2  ('.  P.  I).  110  ;  4(5  L.  J. 
C.  P.  230  ;  25  W.  R.  255  :  35  L.  T.  851 ;  Garnett  v.  Bradley  (C.  A.), 
2  Ex.  D.  349  ;  46  L.  J.  Ex.  545  ;  25  W.  R.  653  ;  36  L.  T.  725  ; 
(H.  of  Lds.)  3  App.  Cas.  044  ;  48  L.  J.  Ex.  186  ;  26  W.  R.  608  ; 
39  L.  T.  261  ;  Ex  parte  Mercers'1  Company,  10  Ch.  D.  481;  48  L.  J. 
Ch.  384  ;  27  W.  R.  424)  ;  while  the  County  Courts  Act,  1867,  is,  by 
the  express  words  of  s.  67  of  the  Judicature  Act  of  1873,  restricted 
to  actions  in  which  relief  can  be  given  in  a  County  Court  ;  and 
slander  and  libel  are  not  among  such  actions.  (County  Courts  Act, 
1846  (0  &  10  Vict.  c.  95),  s.  58.) 

Hence  now,  if  a  plaintiff  recovers  nominal  damages  merely,  he 
will  get  his  costs,  unless  the  judge  or  a  Divisional  Court  otherwise 
orders.  The  defendant's  counsel  must  at  once  apply  to  the  judge 
to  made  an  order  depriving  the  plaintiff  of  his  costs.  But  as  a  rule 
such  an  order  will  only  be  made  where  "  contemptuous  "  damages, 
such  as  a  farthing  or  a  shilling,  have  been  given,  and  not 
always  then.  There  must  be  some  "  good  cause "  for  such  an 
order  ;  something  either  in  the  conduct  of  the  parties  or  in  the  facts 
of  the  case  which,  in  spite  of  the  finding  of  the  jury,  makes  it  more 
just  that  an  exceptionable  order  should  be  made.  If  there  be  no 
such  "  good  cause,"  the  Court  of  Appeal  will  set  the  order  aside. 
If  there  beany  [*367]  such  "  good  cause,"  then  the  Court  of  Appeal 
will  not  interfere  with  the  judge's  discretion,  though  they  may  not 
approve  of  the  way  in  which  he  has  exercised  it.  (Jones  v.  Curling 
and  another  (  C.  A.),  23  Q.  B.  D.  -262  ;  53  L.  J.  Q.  B.  383  ;  32  W. 
R.  651  ;  50  L.  T.  349  ;  Sutdiffe  v.  Smith,  2  Times  L.  R.  881  ;  but 
see  Huxley  v.   West  London.  Extension  My.  Co.,  17  Q.  B.  D.  373.) 

But  if  the  judge  chooses  to  make  an  order,  that  order  is  not  nec- 
essarily that  each  party  should  pay  his  own  costs.  lie  may  for  very 
good  cause  order  that  the  successful  plaintiff  should  pay  defendant's 
costs,  as  well  as  his  own  (see  per  Bramwell,  L.  J.,  15  Ch.  D.  at  p. 
41)  ;  and  where  there  has  been  a  nonsuit,  and  a  new  trial,  the  judge 
who  tries  the  case  the  second  time  may  order  that  the  successful 
plaintiff  shall  pay  the  whole  costs  of  both  trials.  (Harris  v.  Petherick 
(C.  A.),  4  Q.  B.D.  611  ;  48  L.  J.  Q.  B.  521  ;  28  W.  R.  11  ;  41  L. 
T.  146.)  But  of  course  such  an  order  would  only  be  made  in  an 
extreme  case,  and  where  the  plaintiff  has  misconducted  himself. 
(See  Norman  v.  Johnson,  29  Beav.  77.)  A  successful  defendant 
cannot  be  made  to  pay  the  whole  costs  of  the  action  under  any  cir- 
cumstances. (Dirks  v.  Yates,  (C.  A.),  18  Ch.  I).  76,  85  ;  50*L.  J. 
Ch.  309  ;  44  L.  T.  660  ;  Re  Foster  v.  Great  Western  Bail.  Co.,  8 
Q.  B.  D.  at  pp.  521,  522  ;   30  W.  R.  398.) 

Illustrations. 

Where  an  action  of  libel  was  brought  on  a  private  letter  written  by  a  lady  to 
an  intimate  friend,  and  shown  only  to  the  plaintiff  and  two  others,  and  the  plain- 

(348) 


costs.  277 

tiff's  own  conduct  had  given  rise  to  t lie  suspicions  entertained  by  the  writer, 
and  the  jury  gave  a  verdict  for  10/.  damages  ;  Huddleston.  15.,  made  an  order 
depriving  him  of  costs,  and  his  discretion  was  approved  both  in  the  Divisional 
Court  and  in  the  Court  of  Appeal. 

Harnett  v.  Vise  and  Wife  (C.  A.),  5  Ex.  D.  307  ;  29  W.  R.  7. 
Where  a  defendant  denied  publication,  pleaded  privilege,  and  also  paid  ten 
shillings  into  Court,  and  the  jury  found  for  the  plaintiff  on  all  the  other  issues 
except  the  last,  as  to  which  they  found  that  the  amount  paid  into  Court  was 
sufficient,  Palles,  L.  C.  B.,  gave  judgment  for  the  defendant  "without  costs,  and 
the  Divisional  Court  refused  to  interfere  with  his  discretion. 

Kearney  v.  Harrison,  1U  L.  11.  Ir.  17. 

[*368]  Tiiis  rule  as  to  nominal  damages  carrying  costs  applies  in 
all  Courts  whatsoever  in  England,  and  to  all  actions  of  slander  and 
libel,  wherever  tried,  so  long  as  they  come  before  a  jury.  Thus,  in 
the  Salford  Hundred  Court  of  Record  {Tum&r  v.  Heyland,  4  C.  P. 
D.  432  ;  49  L.  J.  C.  P.  535  ;  41  L.  T.  550),  or  in  the  Liverpool 
Court  of  Passage  {King  v.  Hawkesworth,  4  Q.  B.  I).  371  ;  48  L.  J. 
Q.  B.  484  ;  27  W.  R.  660  ;  41  L.  T.  411),  the  rule  is  the  same  as  in 
the  High  Court.  The  law  is  the  same  in  Ireland  in  all  actions  tried 
'since  the  53rd  section  of  the  Judicature  Act  (Ireland),  1877,  came 
into  operation.  (  Cassiclg  v.  O*  Log  Men,  4  L.  R.  Ir.  1,  731.)  And  it  is 
so  in  New  South  Wales  also.  (Harris  v.  Barnes,  10  App.  Cas.  279  ; 
54  L.  J.  P.  C.  15.) 

I  presume  that  Order  LXV.  rule  1  applies  to  the  trial  of  a  remit- 
ted action  before  a  County  Court  judge  and  a  jury.  A  County 
Court  judge  had  power  to  certify  under  the  30  &  31  Vict.  c.  142. 
( Taylor  v.  Cass,  L.  R.  4  C.  P.  614  ;  17  W.  R.  860  ;  20  L.  T.  667. 
But  though  it  was  held  formerly  that  an  under-sheriff  executing  a 
writ  of  inquiry  was  a  "  judge  "  within  that  Act  (  Craven  v.  Smith,  L. 
R.  4  Ex.  146  ;  38  L.  J.  Ex.  90  ;  17  W.  R  710  ;  20  L.  T.  400),  yet 
it  would  seem  that  such  an  assessment  of  damages  is  not  the  trial  of 
"  any  action,  cause,  matter  or  issue  "  by  a  jury  ;  that  the  costs  do 
not  therefore  necessarily  follow  the  event  ;  but  that  the  judge  at 
chambers  has  after  the  return  to  the  writ  discretionary  power  to 
deprive  the  plaintiff  of  costs.  ( Gath  v.  LTowarth,  Weekly  Notes, 
1884,  p.  99  ;  Bitt.  Ch.  Cas.  79.)  A  master  to  whom  an  action  is 
referred  with  the  powers  of  a  judge  atNisiPrius,  may,  in  his  award, 
make  any  order  as  to  costs,  not  inconsistent  with  the  terms  of  the 
submission.  (Bedwell  v.  Wood,  2  Q.  B.  D.  626  ;  36  L.  T.  213.) 
It  is,  however,  usual  in  references  to  give  the  arbitrator  express 
power  over  the  costs.  I  can  only  find  one  case  reported  in  which 
an  action  of  libel  has  been  referred.  {Jones  v.  Young,  2  H.  &  C. 
270  ;  32  L.  J.  Ex.  254.) 

Special  Costs. 

Application  for  any  special  costs,  such  as  those  of  shorthand 
writer's  notes,  or  of  a  commission  abroad,  or  of  a  special  jury,  or  of 
photographic  copies  of  the  libel,  should  be  made  when  judgment  is 
delivered.  [*369]  No  order  will  be  made  as  to  such  costs  after  the 
judgment  has  been  drawn  up  ;    they  must  be  borne  by  the  party 

(349 1* 


278  COSTS 

who  has  incurred  thorn.  (Ashworth  v.  Outram,  9  Ch.  D.  483  ;  27 
W.  R.  98  ;  39  L.  T.  441  ;  Executors  of  Sir  Rowland  Hill  v.  Metro- 
politan District  Asylum,  49  L.  J.  Q.  B.  668  ;  43  L.  T.  462  ;  W.  N. 
1880,  p.  98  ;  Davey  v.  Pemberton,  11  C.  1>.  (N.  S.)  629.)  To  enter- 
tain such  an  application  would  substantially  be  to  rehear  the  cause. 
(In  re  St.  JYazaire  Co.,  12  Ch.  D.  88  ;  27  W.  R.  854  ;  41  L.  T.  110.) 

Costs  of  Separate  Issues. 

By  Order  LXV.  rule  2,  when  issues  in  fact  and  law  are  raised 
upon  a  claim  or  counterclaim,  the  costs  of  the  several  issues  respec- 
tively, both  in  law  and  fact,  shall,  unless  otherwise  ordered,  follow 
the  event. 

Under  the  former  rule  it  was  decided  that  where  the  plaintiff 
joined  several  distinct  causes  of  action  in  one  suit,  and  succeeded 
as  to  some,  and  failed  as  to  others,  the  word  "  event "  must  lie  read 
distributively,  and  the  defendant  was  entitled  to  tax  his  costs  of  the 
issues  found  for  him,  unless  the  Court  or  a  judge  otherwise  ordered. 
(3Iyersv.  Defries,  5  Ex.  D.  15,  180  ;  48  L.  J.  Ex.  446  ;  49  L.  J.  Ex. 
266  ;  28  W.  R.  258,406  ;  41  L.  T.  659  ;  42  L.  T.  137  ;  Davidsonx. 
Gray,  5  Ex.  D.  189,  n.  ;  40  L.  t.  192  ;  (C.  A.)  42  L.  T.  834.)  So  if 
plaintiff  was  nonsuited  as  to  one  cause  of  action,  but  succeeded  on 
another.  .(Abbott  v.  Andrews,  8  Q.  B.  D.  64S  ;  51  L.  J.  Q.  B.  641; 
30  W.  R.  779.)  But  there  was  formerly  great  difficulty  in  inducing 
a  taxing-master  to  apportion  the  costs  of  the  various  issues  arising 
out  of  the  same  cause  of  action.  (See  James  v.  Brook,  16  L.  J.  Q. 
B.  198  ;  Prudliomme  v.  Fraser,  2  A.  &  E.  645  ;  Goodburne  v. 
Bowman,  9  Bing.  667  ;  Biddulph  v  Chamberlayne,  17  Q.  B.  351  ; 
Reynolds  v.  Harris,  3  C.  B.  N.  S.  267  ;  28  L.  J.  C.  P.  26  ;  Skinner 
v.  Shoppee,  et  vx.,  6  Bing.  N.  C.  131  ;  8  Scott,  275  ;  Empson  v. 
Fairfax,  8  A.  &  E.  296  ;  3  N.  &  P.  385  ;  Harrison  v.  Bush,  5  E. 
&  B!  344  ;  25  L.  J.  Q.  B.  99  ;  2  Jur.  N.  S.  90.)  The  judges  seemed 
to  think  it  was  impossible  to  apportion  costs  with  such  minuteness. 
(See  per  Bramwell,  L.  J.,  in  4  Q.  B.  D.  at  p.  612.)  If  the  taxing- 
master  adopted  some  rough  and  readv  method  of  apportionment  (as 
in  Knight  v.  Pursell,  49  L.  J.  Ch.  120  ;  28  W.  R.  90  ;  41  L.  T. 
581),  this  was  considered  all  that  could  be  expected  of  him. 

But  now  the  above  rule  is  imperative.  Hence,  in  future,  if  a 
defendant  in  an  action  of  defamation  both  justifies  and  pleads 
privilege,  and  fails  on  the  first  plea  and  wins  on  the  second,  the 
plaintiff  must  [*370]  pay  the  general  costs  of  the  action,  for  he 
ought  never  to  have  brought  it";  but  all  extra  costs  occasioned  by 
the  plea  of  justification  must  be  paid  by  the  defendant,  unless  the 
judge  at  the  trial  makes  an  order  to  the  contrary.  There  are  of 
course  practical  difficulties  in  the  way  of  such  a  taxation.  It  is 
difficult  for  the  master,  who  was  not  at  the  trial,  to  determine 
whether  it  was,  or  was  not,  solely  in  consequence  of  the  plea  of 
justification  that  a  particular  witness  was  subpoenaed,  or  a  particular 
page  of  the  brief  prepared.  The  plan  adopted  is  to  tax  the  costs 
of  the  action  generally  in  favour  of  the  defendant,  and  then  deduct 
such  sum  as  the  plaintiff  can  prove  to  have  been  occasioned  by  the 

(350) 


COSTS.  279 

plea  of  justification.  And  so  in  other  eases  where  several  distinct 
issues  are  raised.  (See  Sparroio  v.  Hill(C  A.),  8  Q.  B.  J).  479  ; 
50  L.  J.  Q.  B.  675  ;   29  W.  R.  705  ;  44  L.  T.  917.) 

Payment  into    Court. 

Money  cannot  now  be  paid  into  Court  in  any  action  of  libel  or 
slander  without  admitting  the  plaintiff's  cause  of  action  ;  no  defence 
can  be  pleaded  at  the  same  time.  (Order  XXII.  rule  1.)  ffawkesley 
v.  Bradshaw  (C.  A.),  5  Q.  B.  D.  302  ;  49  L.  J.  Q.  B.  333  ;  28  W. 
R.  557  ;  42  L.  T.  285,  is  no.  longer  law.  If  the  plaintiff  accepts  the 
sum  paid  into  Court  in  satisfaction  of  his  claim,  lie  must  give  the 
defendant  notice  to  that  effect,  and  may  then  proceed  to  tax  his 
costs,  and  in  case  of  non-payment  within  forty-eight  hours  may 
sign  judgment  for  his  costs.  But  even  in  this  case  the  plaintiff  is 
subject  to  the  general  jurisdiction  of  the  Court,  and  may  be  deprived 
of  his  costs,  if  the  whole  action  was  useless  or  malicious,  (Broad- 
hurst  v.  Willey,  Weekly  Notes,  1876,  p.  21  ;  Nichols  v.  Evens,  22 
Ch.  D.  Gil  ;  52  L.  J.  Ch.  383  ;  31  W.  R.  412  ;  48  L.  T.  66.)  If 
the  plaintiff  does  not  accept  the  sum  paid  into  Court,  but  continues 
his  action  for  damages  tdtra,  he  will  recover  the  whole  of  his  costs 
of  the  action  should  the  jury  deem  the  amount  paid  into  Court 
insufficient  ;  if,  on  the  other  hand,  they  think  it  sufficient,  the 
defendant  will  be  entitled  to  the  whole  costs  of  the  action  (Langridge 
v.  Campbell,  2  Ex.  D.  281  ;  46  L.  J.  Ex.  277  ;  25  W.  R.  351  ;  36 
L.  T.  64  ;  Goutard  v.  Carr  (C.  A.),  13  Q.  B.  D.  598,  n.  ;  53  L.  J. 
Q.  B.  55,  467,  n.  ;  32  W.  R.  242)  ;  unless  the  Court  or  a  judge 
think  fit  to  make  a  special  order  that  the  plaintiff  shall  have  his 
costs  of  the  action  up  to  the  time  when  the  money  was  paid  into 
Court,  and  the  defendant  shall  have  only  his  costs  incurred  after 
that  time,  as  in  Buchton  v.  Higgs,  4  Ex.  D.  174  ;  27  W.  R.  802  ; 
40  L.  T.  755  ;  and  see  The  William  Symington,  10  P.  D.  1  ;  51  L. 
T.  461. 

[*  371]  Couttterclaim. 

It  is  very  seldom  that  there  is  a  counterclaim  in  an  action  of  libel 
or  slander  ;  but  whenever  there  is,  its  presence  always  complicates 
the  question  of  costs.  In  an  action  for  libel  or  slander  there  can 
be  no  set-off,  as  the  damages  claimed  are  unliquidated  ;  in  other 
words,  the  counterclaim  is  not  a  defence  to  the  plaintiff's  action, 
but  a  cross-action  by  the  defendant  against  the  plaintiff.  It  is  clear, 
moreover,  that  the  County  Courts  Act,  1867,  does  not  apply  to 
actions  of  libel  or  slander,  nor  to  counterclaims  of  anv  kind.  (Blake 
v.  Appleyard,  3  Ex.  D.  195  ;  47  L.  J.  Ex.  407  ;  26  W.  R.  592.)  It 
follows,  therefore,  that  where  the  plaintiff's  claim  is  either  for  libel 
or  slander,  and  the  defendant  sets  up  any  counterclaim,  and  both 
recover,  then,  as  Brett,  L.  J.,  says  in  Baines  v.  Bromley  (V.  A.),  6 
Q.  B.  D.  at  p.  695  ;  50  L.  J.  Q.  B.  465  ;  29  W.  R.  706  ;  44  L.  T. 
915,  "the  proper  principle  of  taxation,  if  not  otherwise  ordered,  is 
to  take  the  claim  as  if   it  and  its  issues  were  an  action,  and  then  to 

(351) 


280  COSTS. 

take  the  counterclaim  and  its  issues  as  if  it  were  an  action,  and 
then  to  give  it  the  allocatur  for  costs  for  the  balance  in  favour 
of  the  litigant  in  whose  favor  the  balance  turns.  In  such  a 
ease  where  items  are  common  to  both  actions  the  master  would 
divide  them."  [This  dictum,  is  in  accordance  with  the  earlier 
decisions  in  Cole,  Marchant  <&  Co.  v.  Firth  and  another,  4  Ex. 
D.  301  ;  40  L.  T.  857  ;  Davidson  v.  Gray,  Barrow  <£•  Co.,  5 
Ex.  D.  189,  n.  ;  40  L.  T.  192  ;  (C.  A.)  *42  L.  T.  8:54  ;  and 
Stooke  v.  Taylor,  5  Q.  B.  D.  569  ;  49  L.  J.  Q.  B.  857  ;  29 
W.  R.  49  ;  43  L.  208  ;  and  has  since  been  recognized  as  good  law 
in  Re  Brown,  Ward  v.  Morse  (C.  A.),  23  Ch.  D.  377  ;  52  L.  J.  Ch. 
324  ;  31  W.  R.  936  ;  49  L.  T.  68  ;  and  in  Lowe  v.  Holme  and 
another,  10  Q.  B.  D.  286  ;  52  L.  J.  Q.  B.  270  ;  31  W.  R.  4<>0.  It 
is,  however,  apparently  in  conflict  with  llallinan  v.  Price,  27  W.  R. 
490  ;  41  L.  T.  627  ;  and  Waring  v.  Pearman,  32  W.  R.  429  ;  50 
L.  T.  633.  The  counterclaim  in  Jjund  v.  Campbell  and  others  (C. 
A.),  14  Q.  B.  D.  821  ;  54  L.  J.  Q.  B.  281  ;  33  W.  R.  510,  was  really 
a  set  off.]  If  the  plaintiff  recover  any  sum  at  all,  even  a  farthing, 
and  the  defendant  nothing  on  his  counterclaim,  then  the  plaintiff, 
in  the  absence  of  any  special  order  to  the  contrary,  is  entitled  to 
the  whole  eosts  of  the  action.  {Potter  v.  Chambers,  4  C.  P.  D. 
457  ;  48  L.  J.  C.  P.  274  ;  57  W.  R.  414.)  If  neither  plaintiff  nor 
defendant  recover  anything  on  either  claim  or  counterclaim,  the 
plaintiff  pays  the  general  costs  of  the  action,  including  those  com- 
mon to  both  claim  and  counterclaim,  for  he  commenced  the  litiga- 
tion ;  the  defendant  pays  only  such  costs  as  the  plaintiff  can  prove 
to  have  been  occasioned  by  the  counterclaim.  [Saner  v.  Hilton,  11 
Ch.  D.  416  ;  [*  372]  48  L.  J.  Ch.  545  ;  27  W.  R.  472  ;  40  L.  T. 
134  ;  3/asou  v.  Brentini  (C.  A.),  15  C.  II.  D.  2S7  ;  29  W.  R.  126  ;  42 
L.  T.  726  ;  43  L.  T.  557.)  If,  however,  the  action  be  not  of  libel 
or  slander,  but  be  such  that  it  could  have  been  brought  in  the 
County  Court,  then  the  plaintiff  cannot,  without  a  special  order, 
recover  any  costs  at  all  from  the  defendant,  unless  the  damages 
exceed  20/.  in  an  action  of  contract,  or  10/.  in  an  action  of  tort  ; 
while  the  defendant  is  entitled  to  recover  on  his  counterclaim  in 
libel  or  in  slander  all  the  costs  of  his  counterclaim,  if  he  recover 
onlv  a  farthing  thereunder.  [Staples  v.  Young,  2  Ex.  D.  324  ;  25 
W.'R.  304  ;  Chaff  Ad  v.  Sedgwick,  4  C.  P.  D.  459  ;  27  W.  R.  790  ; 
41  L.  T.  438  ;  Rutherford  v.'Wilkie,  41  L.  T.  435  ;  Ahrbecher  cb  Son 
v.  Frost,  17  Q.  B.  D.  606  ;  55  L.  T.  264.) 

Remitted  Action. 

When  an  action  of  libel  or  slander  is  remitted  to  the  County 
Court,  under  sect.  10  of  the  County  Courts  Act,  1867  (30  &  31 
Vict.  c.  142),  the  costs  will  follow  the  event,  unless  the  judge  at 
the  trial  make  any  order  to  the  contrary  (County  Courts  Act,  1846, 
9  &  10  Vict.  c.  95,  s.  98)  ;  the  costs  of  the  proceedings  in  the  Supe- 
rior Court  will  be  allowed  according  to  the  scale  in  use  in  the  Supe- 
rior Court  ;  the  costs  incurred  subsequent  to  the  order  of  reference 
according  to  the  County  Court  scale. 

(352) 


COSTS.  281 

Costs  of  former  Trial. 

The  costs  of  the  first  trial  abide  the  event  of  the  second,  unless 
any  special  order  be  made  when  the  new  trial  is  granted,  <>r  at  the 
second  trial.  (Creen  v.  Wright,  2  ('.  P.  1).  354  ;  40  L.  J.  ('.  I\ 
427  ;  25  W.  R.  502  ;  30  L.  T.  355  ;  Meld  v.  Great  Northern  Bail. 
Co.,  3  Ex.  D.  201  ;  20  W.  11.  817  ;  39  L.  T.  80.) 

Husband  and  "Wife. 

If  a  married  woman  having  general  separate  estate  fail  in  an 
action  of  libel  or  slander,  she  may  he  condemned  in  costs,  although 
her  husband  was  joined  with  her  as  a  co-plaintiff  or  a  co-defendant. 
(Newton  ami  Wife  v.  Hoodie  and  others,  4  C.  B.  359  ;  18  L.  J.  C. 
P.  73  ;  3Iorris  v.  Freeman  and  Wife,  3  P.  D.  05  ;  47  L.  J.  P.  I).  & 
A.  79  ;  27  W.  R.  02  ;  39  L.  T.  125  ;  and  see  the  remarks  of  Jessel, 
M.  R.,  in  Besantv.  Wood,  12  Ch.  D.  030  ;  40  L.  T.  453  ;  and  sects. 
1  and  13  of  the  Married  Women's  Property  Act,  1882,  post,  pp. 
396,  401.) 

Public  Bodies. 

[*3~3]  If  the  officers  of  any  corporation,  local  board,  company,  or 
other  public  body  be  libelled  or  slandered,  and  take  either  civil  or 
criminal  proceedings  to  clear  themselves,  the  costs  must  not  be  paid 
out  of  the  corporate  funds,  which  were  contributed  for  otherpur- 
poses.  If,  however,  it  be  the  company  itself  that  is  libelled  or  slan- 
dered, the  directors  may,  of  course,  employ  the  company's  funds 
in  its  own  defence. 

Illustrations. 

The  house  surgeon  of  the  Marylebone  workhouse  was  dismissed  by  the  guard- 
ians in  consequence  of  differences  which  had  arisen  between  him  and  the  honor- 
ary physician  of  the  parish  infirmary.  The  house  surgeon  thereupon  brought 
actions  of  libel  and  slander  against  the  honorary  physician,  and  also  against  the 
assistant  surgeon  of  the  workhouse.  He  failed  in  both,  became  bankrupt,  and 
disappeared.  The  guardians  thereupon  paid  the  costs  incurred  by  their  officers 
out  of  the  poor's-rates  ;  and  the  poor-law  auditors  allowed  the  payments.  But 
Knight-Bruce,  V.-C,  held  such  payment  a  breach  of  trust,  and  ordered  those 
guardians  who  had  authorized  it  to  refund  the  amount  out  of  their  own 
pockets. 

Attorney-General  v.  Compton,  1  Younge  &  Collyer,  Eq.  417. 

A  Turkish  railway  company  was  managed  by  English  directors.  Ellissen 
wrote  a  letter  to  Lord  Stanley  (then  Secretary  for  Foreign  Affairs),  charging  the 
directors  with  mismanaging  the  affairs  of  the  company  and  misappropriating 
its  funds.  At  a  general  meeting  of  the  shareholders  a  resolution  was  passed 
requesting  the  directors  "  to  adopt  the  strongest  possible  measures  to  put  an  end 
to  such  mischievous  action."  The  directors  accordingly  prosecuted  Ellissen  for 
libel.  "Wickens,  V-C,  held  that  the  costs  of  such  prosecution  should  not  be 
paid  out  of  the  assets  of  the  company,  though  he  would  not,  tinder  the  circum- 
stances, order  the  directors  to  repav'anv  costs  already  so  paid. 

Pickering-Y.  Stephenson,!,.  R.  14  Eq.  322;  41  L.  J.  Ch.  493  ;  20  W. 
R.  654;  26  L.  T.  608. 

A  former  employe  of  the  Army  and  Navy  Stores  took  to  walking  up  and 

fS53) 


282  COSTS. 

down  in  front  of  their  door,  carrying  sandwich-boards  placarded  with  violent 
attacks  upon  the  society,  denouncing  it  as  "  a  swindle,  and  counterfeit,"  and 
also  upon  the  directors.  Held,  that  as  these  libels  were  clearly  calculated  to  injure 
the  credit  of  the  society,  and  to  diminish  its  business,  the  costs  of  a  prosecution 
might  rightly  be  paid  out  of  the  funds  of  the  society. 

Studdert  v.  Qrosvenor,  33  Ch.  D.  528;  55  L.  J.  Ch.689  ;  34  W.  R. 
754;  55  L.  T.  171;  50  J.  P.  710. 

As  to  costs  in  criminal  proceedings,  see,  as  to  indictments,  post,  p. 
609;  as  to  criminal  informations, post,  p.  014. 


(354) 


L*3;4\  .  CHAPTER  XIII. 

THE    NEWSPAPER  LIBEL    AND  REGISTRATION  ACT,   1881. 

Iisr  1879,  Mr.  Hutchinson  moved  for  the  appointment  of  a  select 
committee  of  the  House  of  Commons  to  inquire  into  the  law  of  news- 
paper libel.  The  committee  was  appointed,  but  owing  to  the  short 
time  at  its  disposal,  did  not  report.  It  was  re-appointed  in  1880, 
and  reported  on  July  14th,-  1880.  A  copy  of  the  report  will  be 
found  on  pp.  662-3,  of  the  first  edition  of  this  book.  In  1881,  a 
Bill  was  introduced,  embodying  the  recommendations  of  the  com- 
mittee, and  passed  hurriedly  through  both  Houses,  in  spite  of  the 
protests  of  Lord  Redesdale.  There  was  certainly  no  adequate  dis- 
cussion of  the  measure  in  either  House. 

Mr.  Baron  Pollock  says  of  it  in  Ex  parte  Hubert  ILirter  and  Son, 
47  J.  P,  724  ;  15  Cox,  C.  C.  166  ;  74  Law  Times  (Newspaper),  p. 
229:  "  That  act  was  a  sort  of  settlement  between  the  public  on  the 
one  hand  and  newspaper  proprietors  on  the  other.  On  the  one  hand, 
proprietors  of  newspapers  are  to  be  registered,  and  on  the  other  hand, 
they  are  protected  by  the  Act  from  what  the  legislature  deemed  to  be 
not  necessarily  trivial,  but  improper  or  unnecessary  prosecutions  for 
libel."     If  so,  I  think  the  public  have  got  the  best  of  the  bargain. 

The  former  statutes  requiring  registration  (10  Anne,  c.  19,  ss.  Ill 
—114;  38  Geo.  III.  c.  78;  aiuTe  &  7  Will.  IV.  c.  76)  had  all  been 
repealed  in  1870  by  the  33  &  34  Vict.  c.  99. 


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284  THE    NEWSPAPER    LIBEL    AND    REGISTRATION    ACT,  1881. 


THE   NEWSPAPER   LIBEL   AND   REGISTRATION 
ACT,  1881. 
[44  &  45  Vict.  c.  60.]  £*3r&] 


ARRANGEMENT   OF   SECTIONS. 

Section. 

1.  Interpretation. 

2.  Newspaper  reports  of  certain  meetings  privileged. 

3.  No  prosecution  for  newspaper  libel  without  fiat  of  Attorney-General. 

4.  Inquiry  by  Court  of  Summary  Jurisdiction  as  to  libel  being  for  public 

benefit  or  being  true. 

5.  Provision  as  to  summary  conviction  for  libel. 

6.  22  &  23  Vict.  c.  17,  made  applicable  to  all  libels. 

7.  Board  of  Trade  may  authorise  registration  of  the  names  of  only  a  portion 

of  the  proprietors  of  a  newspaper. 

8.  Register  of  newspaper  proprietors  to  be  established. 

9.  Annual  returns  to  be  made. 

10.  Penalty  for  omission  to  make  annual  returns. 

11.  Power  to  make  return  on  transfer. 

12.  Penalty  for  wilful  misrepresentation  in  or  omission  from  return. 

13.  Registrar  to  enter  returns  in  register. 

14.  Fees  payable  for  registrar's  services. 

15.  Copies  of  entries  in  and  extracts  from  register  to  be  evidence. 

16.  Recovery  of  penalties  and  enforcement  of  orders. 

17.  Definitions. 

18.  Provisions  as  to  registration  of  newspaper  proprietors  not  to  apply  to 

newspaper  belonging  to  a  joint-stock  company. 

19.  And  not  to  extend  to  Scotland. 

20.  Short  title. 
Schedules. 


(356) 


THE    NEWSPAPER    LIBEL    AND    REGISTPvATION    ACT,    1881.  285 


1*376]  44  &  45  Vict.  c.  60. 

A?}   Act  to   amend  the  Law  of  Newspaper  Libel,  and  to  provide 
for  the  Registration  of  Newspaper  Proprietor*. 

[27th  August,  1881.] 
Whereas  it  is  expedient  to  amend  the  law  affecting  civil  actions 
and  criminal  prosecutions  for  newspaper  libel  : 

And  whereas  it  is  also  expedient  to  provide  for  the  registration 
of  newspaper  proprietors  : 

Be  it  enacted  by  the  Queen's  most  Excellent  Majesty,  by  and 
with  the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal, 
and  Commons,  in  this  present  Parliament  assembled,  and  by  the 
authority  of  the  same,  as  follows  : 

1.  Interpretation.]— In  the  construction  of  this  Act,  unless  there 
is  anything  in  the  subject  or  context  repugnant  thereto,  the  several 
words  and  phrases  hereinafter  mentioned  shall  have  and  include 
the  meanings  following  ;  (that  is  to  say.) 

The  word  "  registrar "  shall  mean  in  England  the  registrar  for 
the  time  being  of  joint  stock  companies,  or  such  person  as  the 
Board  of  Trade  may  for  the  time  being  authorise  in  that  behalf, 
and  in  Ireland  the  assistant  registrar  for  the  time  being  of  joint 
stock  companies  for  Ireland,  or  such  person  as  the  Board  of  Trade 
may  for  the  time  being  authorise  in  that  behalf. 

The  phrase  "  registry  office  "  shall  mean  the  principal  office  for 
the  time  being  of  the  registrar  in  England  or  Ireland,  as  the  case 
may  be,  or  such  other  office  as  the  Board  of  Trade  may  from  time 
to  time  appoint. 

The  word  "  newspaper  "  shall  mean  any  paper  containing  public 
news,  intelligence,  or  occurrences,  or  any  remarks  or  observations 
therein  [sic;  an  obvious  misprint  for  [*  877 J  "  thereon"]  printed 
for  sale,  and  published  in  England  or  Ireland  periodically,  or  in 
parts  or  numbers  at  intervals  not  exceeding  twenty-six  days  between 
the  publication  of  any  two  such  papers,  parts,  or  numbers. 

Also  any  paper  printed  in  order  to  be  dispersed,  and  made  public 
weekly  or'oftener,  or  at  intervals  not  exceeding  twenty-six  days,  con- 
taining only  or  principally  advertisements. 

The"  word  "  occupation  "  when  applied  to  any  person  shall  mean 
his  trade  or  following  [qu.  calling],  and  if  none,  then  his  rank  or 
usual  title,  as  esquire,  gentleman. 

The  phrase  "  place  of  residence  "  shall  include  the  street,  square,  or 
place  where  the  person  to  whom  it  refers  shall  reside,  and  the  num- 
ber (if  any)  or  other  designation  of  the  house  in  which  he  shall  so 
reside. 

The  word  "  proprietor  "  shall  mean  and  include  as  well  the  sole 
proprietor  of  any  newspaper,  as  also  in  the  case  of  a  divided  pro- 
prietorship the  persons  who,  as  partners  or  otherwise,  represent  and 

(357) 


286  THE    NEWSPAPER    LIBEL    AND    REGISTRATION    ACT,    1881. 

are  responsible  for  any  share  or  interest  in  the  newspaper  as  be- 
tween themselves  and  the  persons  in  like  manner  representing  or 
responsible  for  the  other  shares  or  interests  therein,  and  no  other  per- 
son. 

The  above  definition  of  a  "newspaper"  is  taken  almost  verbatim 
from  Schedule  (A.)  of  the  6  &  7  Will.  IV.  c.  76,  which  was  repealed 
by  the  33  &  34  Vict.  c.  99.  It  was  held  that  a  paper  or  pamphlet, 
though  printed  for  sale,  and  containing  public  news,  was  not  "  a 
newspaper"  within  the  former  Act,  if  published  periodically  at  in- 
tervals exceeding  twenty-six  days.  (Alt.- Gen.  v.  Bradbury  and 
Evans  (1851),  7  Exch.  97  ;  21  L."  J.  Ex.  12  ;  16  Jur.  130.) 

2.  Newspaper  reports  of  certain  meetings  privileged.} — Any  re- 
port published  in  any  newspaper  of  the  proceedings  of  a  public 
meeting  shall  be  privileged,  if  such  meeting  was  lawfully  con- 
vened for  a  lawful  purpose  and  open  to  the  public,  and  if  such 
report  was  fair  and  accurate  and  published  without  malice,  and 
if  the  publication  of  the  matter  [*378]  complained  of  was  for 
the  public  benefit  ;  provided  always,  that  the  protection  intended 
to  be  afforded  by  this  section  'shall  not  be  available  as  a  de- 
fence in  any  proceeding,  if  the  plaintiff  or  prosecutor  can  show 
that  the-  defendant  has  refused  to  insert  in  the  newspaper  in 
which  the  report  containing  the  matter  complained  of  appeared  a 
reasonable  letter  or  statement  of  explanation  or  contradiction  by  or 
on  behalf  of  such  plaintiff  or  prosecutor. 

This  section  was  inserted  in  consequence  of  the  decision  of  the 
Court  of  Appeal  in  Purcell  v.  \Sowler,  2  0.  P.  D.  215  ;  46  L.  J.  C. 
P.  308  ;  25  W.  R.  362  ;  36  L.  T.  416  ;  41  J.  P.  789,  in  which  it  was 
decided  that  a  fair  and  accurate  report  published  in  a  local  newspa- 
per of  the  proceedings  at  a  meeting  of  a  board  of  guardians  was  not 
privileged.  It  will,  I  presume,  protect  the  printer  and  reporter,  as 
well  as  the  proprietor  and  editor  of  a  newspaper  ;  although  the  con- 
cluding proviso  seems  to  contemplate  that  the  defendant  will  have 
the  power  to  admit  or  exclude  a  letter  of  explanation  at  his  pleasure. 

Prior  to  this  Act  no  report  of  any  public  meeting  was  privileged, 
merely  on  the  ground  that  it  was  an  honest  and  accurate  report  of 
what  had  really  taken  place.  (Ante,  p.  266.)  The  defendant  had  to 
prove  either  that  the  words  he  had  reported  were  true,  or  that  they 
were  bond  fide  comments  on  a  matter  of  public  interest. 

I  do  notthink  that  this  section  will  afford  much  protection  to  the 
newspapers.  The  privilege  conferred  is  very  cautiously  guarded. 
The  defendant  will  have  to  prove — 

(a)'  That  the  meeting  was  a  public  meeting, 

(b)  Lawfully  convened 

(c)  For  a  lawful  purpose, 

id)  And  open  to  the  public  ; 
e)  That  the  report  was  fair  and  accurate 
f)  And  published  without  malice, 

(358) 


REPORTS    OF    PUBLIC    MEETINGS.  287 

(g)  And  that  the  publication  of  the  matter  complained  of  was  for 

the  public  benefit  ; 
(h)  And,  after  proving  all  these  facts,  the  defendant  will  lose  liis 
privilege  if  the  plaintiff  or  prosecutor  can  show  that  the  de- 
fendant refused,  when  asked,  to  insert  a  reasonable  letter  of 
explanation  or  contradiction. 
I  think  that  at  common   law,  without  this  section  at  all,  a  report 
which  complied  with  all  the  above  conditions  would  have  been  held 
no  libel  ;  for  I  presume   no   publication  will  be  held  to  be  "  for  the 
[*379]  public  benefit,"  unless  it  relate  to  some  matter  of  public  in- 
terest within  the  rules  laid  down  on  pp.  40 — 62. 

(a),  (d)   Public  Meeting. 

What  is  "  a  public  meeting,"  "open  to  the  public"?  There  are, 
as  yet,  no  decisions  reported  on  this  point  ;  but  I  am  informed  that 
Lord  Coleridge,  C  J.,  expressed  an  opinion  at  the  Swansea  Winter 
Assizes,  18S6,  in  a  case  of  Hughes  v.  Gibson,  that  a  meeting  of  a 
board  of  guardians  was  not  such  a  public  meeting,  although  reporters 
were  admitted.  If  so,  Mr.  Sowler  would  be  held  liable  just  as  he 
was  before  this  Act. 

It  follows  that  no  meeting  of  a  town  council  or  vestry  is  a  public 
meeting  within  this  section,  or  any  other  meeting  at  which  the  pub- 
lic are  present  merely  as  spectators.  It  is  not  enough  that  any 
respectable  citizen  could  in  fact  gain  admittance  to  the  room,  if  when 
admitted  he  could  neither  speak  nor  vote,  nor  take  any  part,  legiti- 
mately, in  the  proceedings. 

At  the  same  time,  it  is  probably  giving  too  narrow  an  effect  to  the 
section  to  limit  it  to  meetings  which  are  open  to  the  public  by  law, 
and  not  by  the  permission  of  the  conveners.  There  are  very  few 
meetings  to  which  the  public  have  a  right  to  insist  on  admission.  So, 
too,  if  the  meeting  is  open  to  the  bulk  of  the  community,  it  would 
probably  be  deemed  a  public  meeting,  though  some  few  were 
excluded — e.g.,  where  a  meeting  is  summoned  of  the  electors  of  a 
borough,  or  even  of  the  ratepayers  of  a  particular  parish.  But  I 
presume  that  a  meeting  to  which  o\\\y  Liberals  or  only  Conserva- 
tives were  invited,  or  a  meeting  of  the  members  of  some  religious 
denomination,  would  not  be  within  the  section.  Meetings  of  credit- 
ors, meetings  of  shareholders  in  a  company,  &c,  are  clearly  not 
"  public  meetings." 

Again,  is  a  meeting  "  open  to  the  public "  when  any  one  may 
enter,  but  only  on  payment  of  some  fixed  charge  for  admission  ? 
The  legislature,  it  will  be  observed,  is  not  content  with  the  phrase, 
"  a  public  meeting  "  ;  it  goes  on  to  say,  "  and  open  to  the  public." 
A  lecture  or  concert,  for  which  seats  are  reserved  long  beforehand 
at  high  prices,  could  hardly  be  called  a  public  meeting.  But  I  incline 
to  think  that  if  the  meeting  was  public  in  all  other  respects,  the 
mere  fact  that  a  small  charge  was  made  for  admission  will  not  take 
the  case  out  of  the  section.  (See  Langrish  v.  Archer,  10  Q.  B.  D. 
44  ;  52  L.  J.  M.  C.  47  ;  31  W.  R.  183  ;  47  L.  T.  548  ;  47  J.  P.  295  ; 
15  Cox,  C.  C.  194.) 

(359) 


288  THE    NEWSPAPER    LIBEL    AM)    REGISTRATION    ACT,  1881. 

[  *380]  (c)  For  a  Lawful  Purpose. 

■  Next,  the  defendant  must  show  that  the  meeting  "  was  lawfully- 
convened  for  a  lawful  purpose."  Seditious  or  illegal  meetings  must 
not  be  reported,  apparently.  Seditious  meetings  are  prohibited  by 
39  Geo.  III.  c.  1!)  (repealed  i  i  part  by  32  &  33  Vict.  c.  24,  s.  1),  and 
by  57  Geo  III.  c.  19  (repealed  in  part  by  30  &  37  Viet.  c.  91,  s.  1). 
Meetings  which  are  convened  for  the  bon  a  fide  purpose  of  reforming 
our  laws  by  petitioning  parliament,  or  by  other  lawful  means,  are 
not  seditious  ;  but  whenever  persons  assemble  to  bring  the  constitu- 
tion into  contempt,  and  to  excite  discontent,  and  disaffection  against 
the  king's  government,  it  is  an  illegal  meeting.  (R.  v.  Hunt  and 
others,  3  B.  &  Aid.  566  ;  lied  ford  v.  Birley,  3  Stark,  at  p.  103.) 

So,  if  persons  meet  for  a  purpose  which,  if  executed,  would  make 
them  rioters,  but  separate  without  carrying  their  purpose  into  effect, 
this  is  an  unlawful  assembly,  though  they  have  done  nothing.  [Rex 
v.  Birt  and  others,  5  C.  &  P.  154.)  A  meeting  called  "  to  adopt  pre- 
paratory measures  for  holding  a  national  convention  "  was  held  an 
illegal  meeting  in  Rex  v.  Fursey,  6  C.  &  P.  81. 

Again,  the  manner  of  holding  the  meeting  may  render  it  an 
unlawful  meeting.  Thus,  any  assembly  is  unlawful  which  meets 
under  circumstances  likely  to  endanger  the  peace  of  the  neighbour- 
hood ;  and,  in  order  to  decide  whether  an  assembly  is  or  is  not 
unlawful,' the  jury  may  take  into  consideration  the  tumultuous  way 
in  which  the  meeting  assembled,  the  hour  at  which  it  met,  the  excite- 
ment which  prevailed  at  it,  the  inscriptions  and  devices  on  banners 
and  flags  displayed,  the  language  used  by  the  persons  assembled, 
and  by  those  who  addressed  them,  and  even  what  the  chairman  of 
this  meeting  said  and  did  at  a  previous  meeting,  convened  for  a 
purpose  avowedly  similar.  (R.  v.  Hunt  and  others,  3  B.  &  &  Aid. 
566.)  But  the  circumstances  must  be  such  as  would  alarm  not  fool- 
ish or  timid  persons  only,  but  also  persons  of  reasonable  firmness  and 
courage.     {Reg.  v.  Vincent,  9  C.  &  P.  91,  109.) 

A  procession  with  banners  is  not  necessarily  unlawful, even  though 
it  result  in  a  breach  of  the  peace  ;  and,  where  the  promoters  of  a 
meeting  assemble  with  a  lawful  purpose,  and  with  no  intention  of 
carrying  out  such  purpose  in  any  unlawful  manner,  the  fact  that 
they  know  that  their  meeting  will  be  opposed,  and  have  good  reason 
to  suppose  that  a  breach  of  the  peace  will  be  committed  by  their 
opponents,  does  not  make  their  meeting  unlawful.  (Beatty  and 
others  v.  Gdlbanks,  9  Q.  B.  D.  308  ;  51  L.  J.  M.  C.  117  ;  31  W.  R. 
275  ;  47  L.  T.  194  ;  46  J.  P.  789  ;  15  Cox,  C.  C.  138.  But  see 
O'Kelly  v.  Harvty,  15  Cox,  C.  C.  435.) 

[* 381]  (b)  Lav-full y  convened. 

Not  only  must  the  meeting  be  held  "  for  a  lawful  purpose,"  but  it 
must  be  "  lawfully  convened."  It  can  hardly  be  expected  that  the 
editor  of  a  newspaper  can  know  exactly  how  and  by  whom  the 
meeting  was  convened.  This  requirement  must,  I  think,  be  intended 
only  to  meet  cases  whei'e  it  is  notorious  that  the  meeting  is  being 

f'M'O) 


REPORTS    OF    PUBLIC    MEETINGS.  289 

convened  in  defiance  of  the  authorities,  or  in  violation  of  the  Acts 
against  tumultuously  petitioning  Parliament.  (13  Car.  II.  c.  5; 
1  Will.  &  M.  Bess.  2,  c.  2  ;  and  57  Geo.  III.  c.  ID,  s.  2:!.)  Thus,  if 
the  Chief  Commissioner  of  Police  did  uo1  exceed  his  powers  in 
forbidding  any  public  meeting  in  Trafalgar  Square  on  November 
9th,  1886,  a  report  of  any  meet  inn'  held  in  spite  of  his  orders  would 
not  be  privileged.  Whether  a  meeting  would  be  within  the  section 
which  was  summoned  for  a  lawful  purpose  to  meet  in  Dodd  Stre<  t. 
I  cannot  say ;  Dodd  Street  being  a  public  highway,  though  a  cul  tie 
sac,  and  therefore  held  to  be  an  improper  place  for  any  meeting. 

(e)    The  report  must  be  fair  and  accurate. 

It  is  not  necessary  that  the  report  should  be  verbatim  ;  nor  is 
absolute  accuracy  essential  so  long  as  the  report  is  substantially 
correct.  A  few  slight  accidental  errors  will  not  destroy  the  priv- 
ilege, provided  the  Avhole  report,  as  published,  produces  materially 
the  same  effect  on  the  mind  of  the  reader  as  an  absolutely  correct. 
report  would  have  done.  "It  is  not  to  be  expected  that  in  dis- 
charging this  duty  of  a  public  journalist  he  will  always  be  infallible," 
sa}rs  Cockburn,  0.  J.,  in  Woodgate  v.  Ridout,  4  F.  &  F.  at  p.  217. 

(f)    Without  Malice. 

This  means  "  without  express  malice,"  of  course.  The  privilege 
created  by  this  section  is  only  qualified,  not  absolute. 

(g)   The  Publication  of  the  Matter  complained  of  must  be  for  the 

Public  Benefit. 

This  is  a  most  important  safeguard.  It  is  not  sufficient  that  a 
report  of  the  meeting  should  be  for  the  public  benefit  ;  it  must  be 
shown  that  the  publication  of  the  very  words  complained  of  was  for 
the  public  benefit.  This  was  clearly  pointed  out  by  the  Divisional 
Court  in  Pankhurst  v.  Sowler,  3  Times  L.  R.  193.  In  that  case,  a 
speaker  at  a  public  election  meeting  thought  fit  to  make  a  personal 
attack  on  a  gentleman  who  was  standing  for  another  constituency 
200  miles  [*  382]  off.  The  wdiole  speech  was  reported  in  the  Man- 
chester Courier.  The  judge  at  the  trial  directed  the  jury  in  terms 
which  might  be  understood  as  meaning  that  the  only  question  for 
the  jury  was  this  :  Is  it  for  the  public  benefit  that  reports  of  elec- 
tion meetings  should  be  published  in  newspapers  ?  His  lordship  did 
not  make  it  clear  to  the  jury  that  the  Act  only  protected  the  news- 
paper when  it  was  for  the  public  benefit  that  the  actual  libel  com- 
plained of  should  be  published  broadcast,  hence  the  Court  granted 
a  new  trial. 

,  Proprietors  of  papers  always  contend,  as  Mr.  Sowler  did  in  this 
very  case,  that  in  the  hurry  of  setting-up  the  type  for  a  daily  paper 
it  is  practical^  impossible' for  the  editor  to  read  through  the  copy  ; 
that  he  ought'not  to  be  expected  to  edit  the  report  ;  that  so  long  as 
the  meeting  is  one  that  ought  to  be  reported,  and  the  report  pre- 
19  lib.  &  slan.  (361) 


290  THE    NEWSPAPER    LIBEL    AND    REGISTRATION    ACT,   1881. 

sented  to  the  public  is  fairly  accurate,  nothing  more  can  be  required. 
But  this  is  a  view  which  both  the  Legislature  and  the  Law  Courts 
steadily  refuse  to  adopt.  The  editor  of  a  paper  must  edit  the  whole 
paper,  or  his  employers  must  take  the  consequence.  It  clearly  is 
not  for  the  public  benefit  that  every  word  uttered  at  a  public  meet- 
ing should  l;e  printed  and  widely  disseminated.  For  instance,  if 
anything  seditious,  blasphemous,  or  obscene  be  uttered  at  the  meet- 
ing, that  must  be  omitted  from  the  report.  {Steele  v.  Brannan,  L. 
R  7  C.  P.  201  ;  41  L.  J.  M.  C.  85  ;  20  W.  R.  607  ;  2G  L.  T.  509.) 
Similarly,  if  anything  defamatory  be  said  of  a  private  citizen,  not  a 
public  man,  the  passage  must  be  excised  from  the  report  before 
publication.  So,  too,  if  an  unfair  attack  be  made  on  a  public  man. 
It  cannot  be  for  the  public  benefit  that  our  newspapers  should  print 
and  circulate  an  unfair  attack  made  on  a  public  servant  in  the  heat 
of  the  moment  at  an  excited  political  meeting.  A  fair  attack  on 
his  public  conduct  is  no  libel  (see  code,  p.  32),  and  may  therefore  be 
published  with  impunity. 

Already,  since  the  decision  in  Pankhurst  v.  Sowler  (December  11, 
1886),  an  agitation  has  commenced  for  the  repeal  of  this  clause  of 
the  section.  But  no  reasons  which  appear  to  me  adequate  are 
assigned  for  such  a  change  in  the  law.  The  consequence  of  pub- 
lishing in  the  papers  calumnies  uttered  at  some  political  or  parish 
meeting  may  be  most  injurious  to  the  person  calumniated.  The 
original  slander  may  not  be  actionable  per  se,  or  the  communication 
may  be  privileged,  so  that  no  action  lies  against  the  speaker  ;  more- 
over, the  meeting  may  have  been  thinly  attended,  and  the  audience 
may  have  known  that  the  speaker  was  not  worthy  of  credit.  But 
it  would  be  a  terrible  thing  for  the  person  defamed  if  such  words 
could  therefore  be  printed  and  published  to  all  the  world,  and 
remain  in  a  permanent  form  recorded  against  him,  without  any 
remedy  being  permitted  him  for  the  injury  [*  383]  caused  by  their 
extended  circulation.  (See  the  remarks  of  Lord  Campbell  in 
Davison  v.  Duncan,  7  E.  &  B.  231  ;  26  L.  J.  Q.  B.  106  ;  3  Jur. 
N.  S.  613  ;  5  W.  R.  253  ;   28  L.  T.  (Old  S.)  265.) 

The  existing  law  appears  to  me  to  afford  sufficient  protection  to 
newspaper  proprietors.  They  ought  surely  to  be  liable  to  a  civil  action 
whenever  they  publish  a  report  defamatory  of  the  plaintiff  on  a 
matter  in  which  the  public  have  no  interest  or  concern.  No  one  can 
desire  to  encourage  that  mischievous  prying  into  the  private  affairs 
of  others,  which  already  disgraces  a  portic:i  of  the  London  press.  If, 
however,  the  matter  is  one  of  public  interest,  then  all  fair  bona  fide 
comments  thereon  are  held  not  to  be  libellous,  and  no  action  lies, 
either  for  their  original  utterance  or  for  their  repetition  in  the  report. 
And,  surely,  if  unfair  and  maid  fide  comments  appear  in  a  news- 
paper, the  owner  ought  to  be  held  liable  for  the  injury  thus  done  by 
his  subordinates.  In  criminal  proceedings,  newspaper  proprietors 
can  avail  themselves  of  the  defences  allowed  them  by  Lord  Camp- 
bell's Act,  which  appear  to  me  sufficient  for  the  purpose. 

(h)  A  reasonable  Letter  must  be  inserted. 

If  the  defendant  is  requested  to  insert  in  his   paper  a  reasonable 

(3G2) 


REPOBTS    OF    PUBLIC    MKKTINCS,  291 

letter  or  statement  of  explanation  or  contradiction,  and  refuses  to 
do  so,  the  privilege  is  Lost.  The  legislature,  I  presume,  regarded 
such  a  refusal  as  cogenl  evidence  of  malice,  [f  so,  this  clause  was 
perhaps  not  strictly  necessary,  aa  the  section  1ms  already  provided 
thai  the  report  must  be  "published  without  malice."  The  presence 
of  this  ^express  proviso,  however,  settles  the  matter  beyond  doubt. 
If  there  be  such  a  refusal,  the  case  is  outside  the  section,  and  no 
question  can  be  left  to  the  jury  as  to  malice  or  no  malice. 

Otherwise  it  is  but  a  poor  satisfaction  to  a  plaintiff  to  allow  him 
to  write  "a  reasonable  letter  of  contradiction."  Many  who  read  the 
report  will  not  read  the  plaintiff's  letter,  and  those  who  do  probably 
will  not  believe  it  ;  they  will  say  :  "  Oh,  of  course  he  denies  it."'  It 
will  often  he  difficult,  too,  to  decide  what  is  and  what  is  not  "  a  rea- 
sonable letter."  And  then  the  speaker  at  the  meeting,  or  some 
friend  of  his,  will  be  sure  to  write  a  letter  in  reply  to  the  plaintiff's, 
re-asserting  the  truth  of  the  original  charge,  and  probably  adding 
a  judicious  selection  of  fresh  accusations,  and  this  letter  also  the 
editor  will  be  bound  in  fairness  to  insert.  And  thus  will  arise  a 
newspaper  warfare  which  will  only  prolong  and  aggravate  the  mis- 
chief caused  by  the  report. 

3.  No  prosecution  for  newspaper  libel  without  fat  of  Attor- 
ney-General.}— No  criminal  prosecution  shall  be  commenced  [*384] 
against  any  proprietor,  publisher,  editor,  or  any  person  responsible 
for  the  publication  of  a  newspaper  for  any  libel  published  therein, 
without  the  written  fiat  or  allowance  of  the  Director  of  Public 
Prosecutions  in  England  or  Her  Majesty's  Attorney-General  in 
Ireland  being  first  had  and  obtained. 

This  section  does  not  apply  to  any  criminal  information,  whether 
ex  officio  or  otherwise.  (JR.  v.  Yates,  11  Q.  B.  D.  750  ;  52  L.  J.  Q.  B. 
778  ;  48  J.  P.  102  ;  15  Cox,  C.  C.  272  ;  Yates  v.  The  Queen  (C.  A.), 
14  Q.  B.  D.  G48  ;  54  L.  J.  Q.  B.  258  ;  33  W.  R.  482  ;  52  L.  T.  305  ; 
49  J.  P.  436  ;  15  Cox,  C.  C.  G86.) 

The  Director  of  Public  Prosecutions  has  an  absolute  discretion 
under  this  section,  to  grant  or  withhold  his  fiat  as  he  thinks  fit.  He 
will  not  grant  it  where  a  civil  action  will  meet  all  the  requirements  of 
the  case.  The  Court  has  no  power  to  control  his  discretion  ;  no 
mandamus  therefore  will  issue  to  compel  him  to  grant  his  fat.  (Ex 
parte  Hubert  Hurler  cfJ  Son,  47  J.  P.  724  ;  15  Cox,  C.  C.  166  ;  74 
Law  Times  (Newspaper),  p.  229.)  The  fat  need  not  name  the  actual 
defendant  ;  it  is  sufficient  if  it  authorize  the  prosecution  of  the  pro- 
prietor, publisher,  or  editor  of  such  and  such  a  paper  ;  the  Director 
cannot  tell  who  that  may  be.  (Reg.  pros.  Tyler  v.  Bradlaugh  (Nov. 
6th,  1882),  Times  for  Nov.  7th,  1882.) 

The  section,  it  will  be  observed,  is  confined  to  the  proprietors,  pub- 
lishers, and  editors  of  newspapers.  Possibly,  the  printer  of  a  news- 
paper is  also  included  in  the  phrase  "  any  person  responsible  for  the 
publication."  It  would  have  been  well  if  the  section  had  included 
books  as  well  as  newspapers,  so  that  a  master  printer,  a  bookseller, 
or  the  owner  of  a  circulating  library   might  no  longer  be   liable  to 

(363 1 


292  THE    NEWSPAPER    LIBEL    AND    REGISTRATION    ACT,  1881. 

criminal  proceedings  for  innocently  publishing  a  volume  which,  as 
he  subsequently  Learns,  contains  a  libel. 

And  note  that  no  protection  is  offered  to  the  actual  composer  and 
author  of  a  libel  published  in  a  newspaper,  not  even  to  a  reporter  on 
the  staff  of  the  paper. 

4.  Inquiry  by  court  of  summary  jurisdiction  as  to  libel  being  for 
public  betiefit  or  being  true.] — A  court  of  summary  jurisdiction, 
upon  the  hearing  of  a  charge  against  a  proprietor,  publisher,  or 
editor,  or  any  person  responsible  for  the  publieation  of  a  newspaper, 
for  a  libel  published  therein,  may  [*  385]  receive  evidence  as  to  the 
publication  being  for  the  public  benefit,  and  as  to  the  matters 
charged  in  the  libel  being  true,  and  as  to  the  report  being  fair  and 
accurate,  and  published  without  malice,  and  as  to  any  matter  which 
under  this  or  any  other  Act,  or  otherwise,  might  be  given  in  evi- 
dence by  way  of  defense  by  the  person  charged  on  his  trial  on 
indictment,  and  the  court,  if  of  opinion  after  hearing  such  evidence 
that  there  is  a  strong  or  probable  presumption  that  the  jury  on  the 
trial  would  acquit  the  person  charged,  may  dismiss  the  case. 

This  section  was  passed  in  consequence  of  the  decision  in  Reg.  v. 
Sir  Robert  Car  den,  5  Q.  B.  D.  1  ;  49  L.  J.  M.  C.  1  ;  28  W.  R.  133  ; 
41  L.  T.  504  ;  14  Cox,  C.  C.  359  ;  44  J.  P.  119,  where  it  was  held 
that  a  magistrate  before  whom  a  writer  is  charged  with  an  offence 
against  sect.  5  of  the  6  &  7  Vict.  c.  96,  had  no  jurisdiction  to  receive 
and  record  evidence  of  the  truth  of  the  libel ;  as  such  a  defence 
could  only  be  raised  at  the  trial  upon  a  special  plea  framed  in  ac- 
cordance with  that  Act.  The  section  only  applies  to  the  proprietor, 
publisher,  editor,  and  printer  of  a  newspaper  ;  hence  the  actual 
composer  of  the  libel,  and  all  persons  concerned  in  any  libel  which 
has  not  appeared  in  a  newspaper,  are  still  bound  by  the  former  pro- 
cedure  ;  as  to  which,  zee  post,  p.  591. 

The  section  only  enables  a  magistrate  to  receive  and  record  such 
evidence  as  would  be  admissible,  if  proper  pleas  be  filed,  on  the 
trial  of  an  indictment  for  the  same  libel.  It  does  not  make  evidence 
admissible  to  prove  the  truth  of  a  blasphemous,  obscene,  or  sedi- 
tious libel.  Thus,  where  upon  an  application  to  a  magistrate  to 
commit  the  proprietor  of  a  newspaper  for  trial  for  a  seditious  libel 
the  defendant's  counsel  tendered  evidence  of  the  truth  of  the  libel, 
and  that  its  publication  was  for  the  public  benefit,  and  the  magis- 
trate refused  to  receive  the  evidence,  it  was  held  that  such  evidence 
was  rightly  rejected.  [Ex  parte  0  Brien,  12  L.  R.  Ir.  29  ;  15  Cox, 
C.  C.  180.) 

If  the  magistrate  decide  to  dismiss  the  case,  the  prosecutor  may 
still,  under  sect.  2  of  the  Vexatious  Indictments  Act  (22  &  23  Vict, 
c.  17),  which  is  made  applicable  to  every  libel  by  sect.  6  of  this  Act, 
require  the.  magistrate  to  bind  him  over  to  prosecute,  and  the  mag- 
istrate thereupon  is  bound  to  take  the  prosecutor's  recognizance 
and  forward  the  depositions  to  the  Court  in  which  the  indictment 
will  be  preferred.     But  in  that  case  the  prosecutor,  if  unsuccessful, 

(364) 


CRIMINAL    PROCEEDINGS.  293 

will  have  to  pay  all  the  defendant's  costs.   .(See  30  &  31  Vict.  c. 

35,  s.  2.) 

[*  386]  5.  Provision  as  to  summary  conviction  for  libel.] — If  a 
court  of  summary  jurisdiction  upon  the  hearing  of  ;i  charge  against 
a  proprietor,  publisher,  editor,  or  any  person  responsible  for  the 
publication  of  a  newspaper  for  a  libel  published  therein  is  of  opinion 
that  though  the  person  charged  is  shown  to  have  been  guilty  the 
libel  was  of  a  trivial  character,  and  that  the  offence  may  be  ade- 
quately punished  by  virtue  of  the  powers  of  this  section,  the  court 
shall  cause  the  charge  to  be  reduced  into  writing  and  read  to  the 
person  charged,  and  then  address  a  question  to  him  to  the  following 
effect  :  "Do  you  desire  to  be  tried  by  a  jury  or  do  you  consent  to 
the  case  being  dealt  with  summarily  ?"  and,  if  such  person  assents 
to  the  case  being  dealt  with  summarily,  the  court  may  summarily 
convict  him  and.  adjudge  him  to  pay  a  fine  not  exceeding  fifty 
pounds. 

42  &  43  Vict.  c.  49.] — Section  twenty-seven  of  the  Summary 
Jurisdiction  Act,  1879,  shall,  so  far  as  is  consistent  with  the  tenor 
thereof,  apply  to  every  such  proceeding  as  if  it  were  herein  enacted 
and  extended  to  Ireland,  and  as  if  the  Summary  Jurisdiction  Acts 
were  therein  referred  to  instead  of  the  Summary  Jurisdiction  Act, 
1848. 

If  the  libel  was  "  of  a  trivial  character,"  surely  no  fiat  would  be 
granted  under  sect.  3.  It  must  be  remembered,  however,  that  the 
Director  of  Public  Prosecutions  only  hears  one  side  ;  the  police 
magistrate  hears  both  sides. 

This  procedure  can  only  be  adopted  wher,e  the  defendant  is  the 
proprietor,  printer,  editor,  or  publisher  of  a  newspaper  within  the 
meaning  of  this  Act.  The  reporter  or  other  the  writer  of  the  libel 
must,  be  committed  for  trial  in  the  usual  way. 

6.  22  &  23  Vict.  c.  17  made  applicable  to  all  libels.] — Every  libel 
or  alleged  libel,  and  every  offence  under  this  Act,  shall  be  deemed 
to  be  an  offence  within  and  subject  to  the  provisions  of  the  Act  of 
the  session  of  the  twenty-second  and  twenty-third  years  of  the 
reign  of  her  present  Majesty,  chapter  seventeen,  entitled,  "  An  Act 
to  prevent  vexatious  indictments  for  certain  misdemeanors." 

This  section  applies  to  all  libels,  whether  published  in  a  news- 
paper or  not.  Hence  now,  if  criminal  proceedings  be  taken  for  a 
libel  contained  in  a  newspaper,  the  case  must  be  gone  into  four 
times — once  by  the  director  of  public  prosecutions  before  he  grants 
his  fiat ;  next,  before  the  magistrate,  where  evidence  on  both  sides 
will  probably  be  gone  into  (see  sect.  4)  ;  then  before  the  grand 
jury  ;  and,  lastly,  in  open  Court,  before  the  petty  jury.  Surely  it 
would  have  been  far  simpler  and  better  to  have  abolished  the 
remedy  by  indictment  altogether,  leaving  the  person  defamed  his 

(365) 


294  THE    NEWSPAPER   LIBEL   AND    REGISTRATION    ACT,  1881. 

civil  remedy  only  in  all  cases  where  the  libel  was  not  of  so  serious 
a  character  as  to  call  for  a  criminal  information. 

As  to  binding-  over  the  prosecutor,  see  ante,  p.  385.  As  to  add- 
ing to  the  indictment  counts  for  other  libels  not  before  the  magis- 
trate, see  R.  pros.  Tyler  v.  Bradlaugh,  47  L.  T.  477  ;  15  Cox,  C. 
C.  156,  post,  p.  595. 


7.  Board  of  Trade  may  authorise  registration  of  the  names  of 
only  a  portion  of  the  proprietors  of  a  neivspaper.] — Where,  in  the 
opinion  of  the  Board  of  Trade,  inconvenience  would  arise  or  be 
caused  in  any  case  from  the  registry  of  the  names  of  all  the  pro- 
prietors of  the  newspaper  (eiiher  owing  to  minority,  coverture, 
absence  from  the  United  Kingdom,  minute  subdivision  of  shares, 
or  other  special  circumstances),  it  shall  be  lawful  for  the  Board  of 
Trade  to  authorise  the  registration  of  such  newspaper  in  the  name 
or  names  of  some  one  or  more  responsible  "  representative  proprie- 
tors." 

This  section  is  out  of  place.  It  should  have  come  after  sect.  10. 
(And  see  post,  sect.  18.) 

Where  it  is  desired  to  make  a  return  of  "  representative  proprie- 
tors "  under  this  section,  a  statement  should  be  sent  to  the  registrar 
setting  forth  the  circumstances  which  render  it  inconvenient  to 
register  the  names  of  all  the  proprietors,  and  giving  such  informa- 
tion as  will  show  that  the  proposed  representatives  are  well  able  to 
n/eet  any  claims  that  may  arise  for  libel  or  otherwise  in  connection 
with  the  management  of  the  paper. 

The  Board  of  Trade  very  properly  require  to  be  satisfied  that  the 
person  put  forward  as  the  "  representative  proprietor  "  is  "  respon- 
sible "  in  every  sense  of  the  word. 

[*388]  8.  Register  of  newspaper  proprietors  to  be  established.] — 
A  register  of  the  proprietors  of  newspapers  as  defined  by  this  Act 
shall  be  established  under  the  superintendence  of  the  registrar. 

See  the  interpretation  clause,  sect.  1. 


9.  Annual  returns  to  be  made.] — It  shall  be  the  duty  of  the 
printers  and  publishers  for  the  time  being  of  every  newspaper  to 
make  or  cause  to  be  made  to  the  registry  office  on  or  before  the 
thirty-first  of  July  one  thousand  eight  hundred  and  eighty-one,  and 
thereafter  annually  in  the  month  of  July  in  every  year,  a  return  of 
the  following  particulars  according  to  Schedule, A.  hereunto  an- 
nexed ;  that  is  to  say, 

(a.)  The  title  of  a  newspaper  : 

(b.)  The  names  of  all  the  proprietors  of  such  newspaper  together 
with  their  respective  occupations,  places  of  business  (if  any), 
and  places  of  residence. 

The  Act  did  not  come  into  force  till  August  27th,  1881  ;  although 
it  requires  registration  before  July  31st,  1881.  Schedule  A.  is  as 
follows  : — 

(3G6) 


REGISTRATION. 

SCHEDULE  A. 


295 


Return  made  pursuant  to  the  Newspaper  Libel  and  Registration 

Act,  1881. 


Title  of  the  Newspaper. 


Names  <>f 

the 
Proprietors. 


( >ccupations 

of  the 
Proprietors. 


Places 

of  business 

(if  any)of  the 

Proprietors. 


Places  of 
Residence  of 

the 
Proprietors. 


The  prescribed  forms  on  which  the  returns  are  to  be  made  will  be 
sent,  either  stamped  with  the  requisite  fee  stamps  or  unstamped,  on 
application  to  the  Registrar,  Companies'  Registration  Office,  Som- 
erset House,  London,  W.C.  No  charge  is  made  for  the  forms  ;  but 
when  stamped  forms  are  required  a  Postal  Order  for  the  amount  of 
the  fee  must  accompany  the  application. 

A  separate  return  will  be  required  for  each  paper,  though  the 
same  [*389]  proprietor  may  own  more  than  one.  The  person  pre- 
senting the  return  for  registration  is  required  to  sign  his  name  and 
address  on  the  front  of  it,  probably  with  a  viewr  to  sect.  12.  The 
printers  are  required  to  make  the  return  because  their  name  must 
be  on  the  paper  by  the  2  &  3  Vict.  c.  12,  s.  2. 

10.  Penalty  for  omission  to  make  annual  returns.] — If  within 
the  further  period  of  one  month  after  the  time  hereinbefore  ap- 
pointed for  the  making  of  any  return  as  to  any  newspaper  such 
return  be  not  made,  then  each  printer  and  publisher  of  such  news- 
paper shall,  on  conviction  thereof,  be  liable  to  a  penalty  not  exceed- 
ing twenty-five  pounds,  and  also  to  be  directed  by  a  summary 
order  to  make  a  return  within  a  specified  time. 

Such  an  order  can  be  enforced  in  the  manner  provided  by  sect. 
34  of  the  Summary  Jurisdiction  Act,  1879,  that  is,  by  ordering  the 
person  in  default  to  pay  a  sum  not  exceeding  1/.  for  every  day  dur- 
ing which  he  is  in  default,  or  to  be  imprisoned  until  he  make  a 
return. 

11.  Power  to  rnahe  return  on  transfer.]  Any  party  to  a  transfer 
or  transmission  of  or  dealing  with  any  share  of  or  interest  in  any 
newspaper  whereby  any  person  ceases  to  be  a  proprietor  or  any  new 
proprietor  is  introduced  may  at  any  time  make  or  cause  to  he  made 
to  the  registry  office  a  return  according  to  the  Schedule  B.  here- 
unto annexed  and  containing  the  particulars  therein  set  forth. 

Schedule  B.  is  as  follows  : — 

(367) 


296  THE    NEWSPAPER    LIBEL    AND    REGISTRATION    ACT,   1881. 

SCHEDULE  B. 

Return  made  pursuant  to  the  Newspaper  Libel  and  Registration 
Act,  1881. 


Title  of 
Newspaper. 


Names  of 
Persons 
who     cease 
to  be  Pro- 
prietors. 


Names  of 
Persons 
who     be- 
come   Pro- 
prietors. 


Occupation 

p°rtfn.e7      anv)ofnew 
Pr°Pnetors  Proprietors 


Places  of  I  Places  of 
business  (if  Resi  dence 
of  new 
Proprietors 


[*390]  It  will  be  observed  that  this  section  is  permissive  merely. 
The  transferee  may  register  his  name  and  address,  or  not,  as  he 
pleases.  Hence  a  plaintiff  or  prosecutor  can  never  be  certain  that 
the  registered  proprietor  is  the  person  liable  for  the  publication 
complained  of.  No  doubt  the  presumption  would  be  that  the  per- 
son who  was  proprietor  in  July  last  was  proprietor  still  ;  but  it 
will  be  open  to  him  to  prove  at  the  trial,  after  all  the  costs  have 
been  incurred,  that  since  July  last  he  transferred  his  interest  in  the 
paper  to  some  one  else.  (See  post,  sect.  15.)  In  a  civil  case  this 
difficulty  may  be  overcome  by  administering  interrogatories.  (See 
post,  pp.  551 — 3.)  But  it  would  have  been  better  if  the  legislature 
had  made  the  "  return  according  to  Schedule  B."  compulsory  on 
every  transfer,  and  had  further  enacted  that,  till  such  return  was 
registered,  the  former  proprietor  should  remain  liable  for  every- 
thing published  in  the  newspaper. 

12.  Penalty  for  toilful  misrepresentation  in  or  omission  from 
return.] — If  any  person  shall  knowingly  and  wilfully  make  or 
cause  to  be  made  any  return  by  this  Act  required  or  permitted  to 
be  made  in  which  shall  be  inserted  or  set  forth  the  name  of  any 
person  as  a  proprietor  of  a  newspaper  who  shall  not  be  a  proprietor 
thereof,  or  in  which  there  shall  be  any  misrepresentation,  or  from 
which  there  shall  be  any  omission  in  respect  of  any  of  the  particu- 
lars by  this  Act  required  to  be  contained  therein  whereby  such 
return" shall  be  misleading,  or  if  any  proprietor  of  a  newspaper  shall 
knowingly  and  wilfully  permit  any  such  return  to  be  made  which 
shall  be  misleading  as' to  any  of  the  particulars  with  reference  to 
his  own  name,  occupation,  place  of  business  (if  any),  or  place  of 
residence,  then  and  in  every  such  case  every  such  offender  being 
convicted  thereof  shall  be  liable  to  a  penalty  not  exceeding  one 
hundred  pounds. 

13.  Registrar  to  enter  returns  in  register.] — It  shall  be  the  duty 
of  the  registrar  and  he  is  hereby  required  forthwith  to  register 

(368) 


REGISTRATION.  297 

every  return  made  in  conformity  with  the  provisions  of  this  Act  in 
a  book  to  be  kept  for  that  purpose  at  the  registry  office  and  called 
"the  register  of  newspaper  proprietors,"  and  all  persons  shall  be  at 
liberty  to  search  and  inspect  the  said  hook  from  time  to  time  dur- 
ing the  [*391]  hours  of  business  ai  the  registry  office,  and  any  per- 
son may  require  a  copy  of  any  entry  in  or  an  extract  from  tin- 
book  to'  he  certified  by  the  registrar  or  his  deputy  for  the  time 
being  or  under  the  official  seal  of  the  registrar. 

On  payment  of  one  shilling,  anyone  may  inspect  both  the  returns 
for  the 'present  year  and  also  the  back  returns,  at  Room  No.  7, 
Somerset  House. 

14.  Fees  payable  for  registrar's  services.'] — There  shall  he  paid 
in  respect  of  the  receipt  and  entry  of  returns  made  in  conformity 
with  the  provisions  of  this  Act,  and  for  the  inspection  of  the 
registrar  of  newspaper  proprietors,  and  for  certified  copies  of  any 
entry  therein,  and  in  respect  of  any  other  services  to  be  performed 
by  the  registrar,  such  fees  (if  any)  as  the  Board  of  Trade  with  the 
approval  of  the  Treasury  may  direct  and  as  they  shall  deem  requisite 
to  defray  as  well  the*  additional  expenses  of  the  registry  office 
caused  by  the  provisions  of  this  Act,  as  also  the  further  remuner- 
ations and  salaries  (if  any)  of  the  registrar^ and  of  any  other  per- 
sons employed  under  him  in  the  execution  of  this  Act,  and  such 
fees  shall  be  dealt  with  as  the  Treasury  may  direct. 

The  fees  which  the  Board  of  Trade  have,  with  the  approval  of  the 
Treasurv,  directed  to  be  paid  are  as  follows  : — 

£    s.    d. 
For  the  registration  for  the  first  time  of  any 

"  representative  proprietor  "  (sect.  7) 
On  registration  in  other  cases 
On  the  rendering  of  subsequent  returns 
For  inspection      ...... 

For  a  copy  of  a  return  .... 

and  a  further  fee  of  fourpence  per  folio  to  be  charged  if  the  copy 
exceeds  three  folios. 

For  a  certificate,  a  further  fee  of  one  shilling  is  charged  for  the 
stamp  required  by  the  Inland  Revenue  Commissioners. 

15.  'Copies  of  entries  in  and  extracts  from  register  to  be  evidence.] 
— Every  copy  of  an  entry  in  or  extract  from  the  [*  392]  register  of 
newspaper  proprietors,  purporting  to  be  certified  by  the  registrar 
or  his  deputy  for  the  time  being,  or  under  the  official  seal  of  the 
registrar,  shall  be  received  as  conclusive  evidence  of  the  contents  of 
the  said  register  of  newspaper  proprietors,  so  far  as  the  same  appear 
in  such  copy  or  extract  without  proof  of  the  signature  thereto  or  of 
the  seal  of  office  affixed  thereto,  and  every  such  certified  copy  or 
extract  shall  in  all  proceedings,  civil  or  criminal,  be  accepted  as 
sufficient  prima  facie  evidence  of  all  the  matters  and  things  thereby 
appearing,  unless  and  until  the  contrary  thereof  he  shown. 

This  is  a  very  valuable  provision,  and  will  greatly  facilitate  proof 

(3G9) 


1 

0 

0 

0 

10 

0 

0 

5 

0 

0 

1 

0 

0 

1 

0 

208  THE    NEWSPAPER    LIBEL    AND    REGISTRATION    ACT,    1881. 

of  publication  in  all  cases  of  newspaper  libel.     (But  see  note  to 

sect.  11.) 

10.  Recovery  of  penalties  and  enforcement  of  orders.] — All 
penalties  under  this  Act  may  be  recovered  before  a  court  of  sum- 
mary jurisdiction  in  manner  provided  by  the  Summary  Jurisdiction 
Ads.  ' 

Summary  orders  under  this  Act  may  be  made  by  a  court  of  sum- 
mary jurisdiction,  and  enforced  in  manner  provided  by  section 
thirty-four  of  the  Summary  Jurisdiction  Act,  1889  ;  and,  for  the 
purpose  of  this  Act,  that  section  shall  be  deemed  to  apply  to  Ireland 
in  the  same  manner  as  if  it  were  re-enacted  in  this  Act. 

17.  Definitions.'] — The  expression  "a  court  of  summary  juris- 
diction "  has  in  England  the  meanings  assigned  to  it  by  the  Sum- 
mary Jurisdiction  Act,  1879  ;  and  in  Ireland  means  any  justice  or 
justices  of  the  peace,  stipendiary  or  other  magistrate  or  magistrates, 
having  jurisdiction  under  the  Summary  Jurisdiction  Acts. 

The  expression  "  Summary  Jurisdiction  Acts,"  lias  as  regards 
England  the  meanings  assigned  to  it  by  the  Summary  Jurisdiction 
Act,  1879  ;  and  as  regards  Ireland,  means  within  the  police  district 
of  Dublin  metropolis^ the  Acts  regulating  the  powers  and  duties  of 
justices  of  the  peace  f%r  such  district,  or  of  the  police  of  that  dis- 
trict, and  [*  393]  elsewhere  in  Ireland  the  Petty  Sessions  (Ireland) 
Act,  1851,  and  any  Act  amending  the  same. 

By  sect.  50  of  the  Summary  Jurisdiction  Act,  1879,  the  expres- 
sion, "  a  Court  of  Summary  Jurisdiction,"  is  defined  to  mean  "  any 
justice  or  justices  of  the  peace  or  other  magistrate,  by  whatever 
name  called,  to  whom  jurisdiction  is  given  by,  or  who  is  or  are  au- 
thorized to  act  under,  the  Summary  Jurisdiction  Acts,  or  any  of  such 
Acts." 

By  the  same  section,  the  expression  "  Summary  Jurisdiction  Acts  " 
is  defined  to  mean  the  Summary  Jurisdiction  Act,  1848  (11  &  12 
Vict.  c.  43),  and  the  Summary  Jurisdiction  Act,  1879  (42  &  43  Vict. 
c.  49)  and  any  Act,  past  or  future,  amending  either  of  them. 

IS.  Provisions  as  to  registration  of  newspaper  proprietors 
not  to  apply  to  newspaper  belonging  to  a  joint  stock  company.'] 
— The  provisions  as  to  the  registration  of  newspaper  proprietors 
contained  in  this  Act  shall  not  apply  to  the  case  of  any  newspaper 
which  belongs  to  a  joint  stock  company  duly  incorporated  under  and 
subject  to  the  provisions  of  the  Companies  Acts,  1862  to  1879.* 

This  is  a  mistaken  and  mischievous  provision.  Many  newspapers 
now  are  published  by  limited  liability  companies,  with  names  that 
suggest  no  connection  between  the  company  and  the  paper.  For  in- 
stance the  Graphic  is  published  by  "  H.  R."  Baines  &  Co.,  Limited." 
Assuming  that  it  were  possible  that  a  libel  should  appear  in  the 
Graphic,  how  could  the  person  libelled  discover  whom  to  make  de- 
fendant? Owing  to  this  section  there  would  be  no  entry  at  all  at 
Somerset  House  to  assist  him. 

(370) 


REGISTRATION.  299 

19.  Act  not  to  extend  to  /Scotland.] — This  Act  shall  not  extend  to 
Scotland. 

The  law  of  Scotland  was  said  to  be  less  stringent  on  the  subject 
than  that  of  England  or  Ireland. 

20.  Short  title.] — This  Act  may  for  all  purposes  be  cited  as  the 
Newspaper  Libel  and  Registration  Act,  1881. 

The  Schedules  to  which  this  Act  refers  : 

SCHEDULE  A. 
[Set  out  in  the  note  to  sect.  9,  ante,  p.  388.] 

SCHEDULE  B. 
[Set  out  in  the  note  to  sect.  11,  ante,  p.  389.] 


(371) 


[•awi  CHAPTER  XIV. 

THE    LAW  OF  PERSONS    IN  BOTH    CIVIL    AND    CRIMINAL  CASES. 

We  have  hitherto  dealt  with  the  plaintiff  and  defendant  as  indi- 
viduals under  no  disability,  who  sue  and  are  sued  singly  and  in  their 
own  right.  I  propose  in  this  chapter  to  examine  the  rights  and  lia- 
bilities arising  from  personal  disability  or  special  personal  relations 
with  others,  both  in  civil  and  criminal  cases. 

It  will  be  convenient  to  divide  this  chapter  into  the  following 
heads : — 

1.  Husband  and  Wife. 

2.  Infants. 

3.  Lunatics. 

4.  Bankrupts. 

5.  Receivers. 

C.  Executors  and  Administrators. 
7;  Aliens. 

8.  Master  and  Servant  ;  Principal  and  agent. 

9.  Corporations  and  companies. 

10.  Partners. 

11.  Other  Joint  Plaintiffs. 

12.  Joint  defendants. 

1.  Husband  and  Wife. 

Whenever  words  actionable  per  se  are  spoken  of  a  married  woman, 
she  may  sue  alone,  or  she  may  join  [*395]  her  husband  as  co-plaintiff, 
in  which  case  he  will  be  entitled  to  recover  in  the  same  action  for 
any  special  damage  that  may  have  occurred  to  him.  When  the 
words  are  not  actionable  per  se,  she  may  sue,  provided  she  can  show 
that  some  special  damage  has  followed  from  the  words  to  her.  That 
special  damage  has  accrued  to  her  husband  in  consequence  of  such 
words  will  not  avail  her  ;  he  alone  can  sue  for  such  damage,  although 
it  is  her  reputation  that  has  been  assailed. 

Hence,  if  words  not  actionable  per  se  be  spoken  of  a  married 
woman  and  damage  ensue  to  the  husband,  none  to  her,  she  cannot 
sue,  but  he  can.  The  damage  to  him  is  in  fact  the  sole  cause  of 
action. 

This  right  of  the  husband  to  sue  for  words  defamatory  of  his 
wife  is  somewhat  anomalous,  for  his  reputation  is  in  no  way  assailed; 
and  though  he  has  sustained  damage,  is  it  not  damnum  sine  injuria? 
Generally  speaking,  if  words  defamatory  of  A.,  but  not  actionable 
in  themselves,  produce  damage  only  to  B.,  neither  A.  nor  B.  can 
sue.     But  the  reputation  of  a  husband  is  so  intimately  connected 

(372) 


HUSBAND    AMi    WIFE.  301 

with  that  of  his  wife,  that  he  has  always  been  allowed  to  sue  when- 
ever he  has  received  damage,  just  as  though  the  words  had  been 
spoken  of  himself. 

That  this  is  law,  is  clearly  laid  down  in  Siderfin,  346,  under  the 
year  1607  : — "Nota,  si  parols  queux  de  eux  m  ne  sont  Actionable 
mes  solement  in  respect  del  collateral  dams,  sont  pie.  (paries)  del 
feme  covert,  Le  Baron  sole  port  L'action,  et  si  le  feme  soit  joyn  ove 
luv  le  Judgment  serra  pur  ceo  arrest,  coment  soit  apres  verdict." 
(And  see  Ilarviood  et  JTardioick  et  ux.  (1008),  2  Keltic,  387  ;  Cole- 
man et  ux.  v.  Harcourt  (1004),  1  Levin/,,  140  ;  Grove  et  ux.  v.  Hart 
(1752).  Sayer,  33  ;  B.  N.  P.  7.)  In  the  case  of  "Riding  v.  Smith,  1 
Ex.  D.  91  ;  45  L.  J.  Ex.  281  ;  24  W.  R.  487;  34  L.  T.  500,  the  wife's 
name  was  struck  off  the  record  by  the  judge  at  the  trial,  and  the 
husband  recovered  for  the  damage  to  his  business  caused  by  words 
not  actionable  per  se,  spoken  of  his  wife;  though  there  it  is  true 
the  Court  bases  its  judgment  on  the  fact  that  Mrs.  Riding  helped 
her  husband  in  the  shop,  and  was  therefore  his  servant  or  assistant 
as  well  as  his  wife. 

By  the  Married  Women's  Property  Act,  1882  (45  &  46  Vict.  c. 
75),  s.  1,  sub-s.  (2),  a  married  woman  is  now  [*  396]  capable  "of 
suing  and  being  sued,  either  in  contract  or  in  tort,  or  otherwise,  in 
all  respects  as  if  she  were  a  feme  sole,  and  her  husband  need  not  be 
joined  with  her  as  plaintiff  or  defendant,  or  be  made  a  party  to  any 
action  or  other  legal  proceeding  brought  by  or  taken  against  her  ; 
and  any  damages  or  costs  recovered  by  her  in  any  such  action  or 
proceeding  shall  be  her  separate  property  ;  and  any  damages  or 
cost  recovered  against  her  in  any  such  action  or  proceed- 
ing shall  be  payable  out  of  her  separate  property,  and  not 
otherwise."  A  married  woman,  therefore,  may  now  sue  for  libel 
or  slander  without  her  husband  or  any  next  friend  ;  and  she  cannot 
be  ordered  to  give  security  for  the  costs  of  the  action,  even 
although  she  have  at  the  time  of  action  no  separate  estate,  and 
there  be  nothing  upon  which,  if  she  fails,  the  defendant  can  issue 
available  execution.  {In  re  Isaac,  Jacob  v.  Isaac  (C.  A.),  30  Ch. 
D.  418  ;  54  L.  J.  Ch.  1136  ;  33  W.  R.  845  ;  53  L.  T.  478  ;  Threl- 
fall  v.  Wilson.,  8  P.  I).  18  ;  48  L.  T.  238  ;  Severance  Civil  Service 
Supply  Association,  48  L.  T.  485.)  This  section  enables  a  married 
woman  to  sue  alone  for  a  tort  committed  against  her  before  the  Act 
came  into  operation.  (  Weldon  v.  Winslow  (C.  A.),  13  Q.  B.  D. 
784  ;  53  L.  J.  Q.  B.  528  ;  33  W.  R.  219  ;  51  L.  T.  643.)  And  as 
she  could  not  sue  alone  before  the  commencement  of  the  Act  (Jan- 
uary 1st,  1883),  the  Statute  of  Limitations  does  not  commence  to 
run  against  her  till  that  date.     (  Weldon  v.  Need,  32  W.  R.  828.) 

Formerly  a  married  woman  was  always  bound  to  join  her  hus- 
band as  co-plaintiff,  otherwise  the  defendant  might  plead  in  abate- 
ment. But  the  action  was  still  regarded  as  solely  hers.  If  she 
died,  it  abated  ;  if  he  died,  the  action  survived  to  her  and  she  con- 
tinued it  as  sole  plaintiff.  No  damages  could  be  recovered  in  such 
an  action  for  any  pecuniary  loss  suffered  by  the  husband  ;  if  the 

(373) 


302  THE    LAW    OF    PERSONS. 

words  were  not    actionable  per  se,  and  the  female  plaintiff  could 
show  no  damage  to  herself,  they  were  non-suited. 

The  husband  was  formerly  obliged  to  bring  a  separate  action  for 
any  damage  he  had  sustained.  But  by  the  Common  Law  Procedure 
[*  397]  Act,  1852,  s.  40,  he  was  allowed  to  add  claims  in  his  own 
right  whenever  he  was  necessarily  made  a  co-plaintiff  in  any  action 
brought  for  an  injury  done  to  his  wife  ;  and  it  was  provided  that 
on  the  death  of  either  party  the  action  should  not  abate  so  far  as 
the  causes  of  action  belonging  to  the  survivor  were  concerned. 
And  now,  by  Order  XVIII.  r.  4,  "Claims  by  or  against  husband 
and  wife  may  be  joined  with  claims  by  or  against  either  of  them 
separately." 

Married  women  still,  as  a  rule,  adopt  the  old  common  law  method, 
and  join  their  husbands  as  co-plaintiff.  And  there  is  this  practical 
convenience  in  so  doing,  that  thus  all  damages  sustained  by  either 
can  be  recovered  in  one  action.  And  there  is  also  a  twofold  chance 
of  proving  special  damage.  In  all  cases  of  the  class  of  Attsop  v. 
Allsop,  5  II.  &  N.  534  ;  29  L.  J.  Ex.  315,  ante,  p.  336,  it  will  clearly 
be  prudent  for  the  pleader  to  make  a  separate  claim  for  damages 
for  the  husband.  For  I  apprehend  that  it  is  clear  law  that  a  wife 
suing  alone  under  the  Act  of  1882,  cannot  recover  for  any  special 
damage  which  would  have  been  excluded  in  an  action  brought  at 
common  law  by  herself  and  her  husband.  The  damages  recovered  in 
such  an  action  are  to  be  her  separate  property  ;  she  cannot,  there- 
fore, recover  for  any  loss  which  her  husband  has  suffered.  "  The 
Act  does  not  destroy  the  husband's  right,  but  only  relieves  the 
woman  from  incapacity."  (Per  Bo  wen,  L.  J.,  in  Weldonv.  Winsloio 
(C.  A.),  13  Q.  B.  D.  788  ;  53  L.  J.  Q.  B.  528  ;  33  W.  R.  219  ;  51 
L.  T.  643.) 

By  sect.  12  of  the  same  Act,  "Every  woman,  whether  married 
before  or  after  this  Act,  shall  have  in  her  own  name  against  all  per- 
sons whomsoever,  including  her  husband,  the  same  civil  remedies, 
and  also  (subject,  as  regards  her  husband,  to  the  proviso  herein- 
after contained)  the  same  remedies  and  redress  by  way  of  criminal 
proceedings,  for  the  protection  and  security  of  her  own  separate 
property,  as  if  such  property  belonged  to  her  as  a  feme  sole,  but, 
except  as  aforesaid,  no  husband  or  wife  shall  be  entitled  to  sue  the 
other  for  a  tort."  This  section  does  not  enable  a  married  woman  to 
take  criminal  proceedings  against  her  husband  for  a  personal  libel 
upon  herself.  {The  Queen v.  Lord  Mayor  of  London  and  Vance, 
16  Q.  B.  D.  772  ;  55  L.  J.  M.  C.  118  ;  34  W.  R.  544;  54  L.  T.  761; 
50  J.  P.  614;  16  Cox,  C.  C.  81.) 

[*398 1  In  New  York  and  Pennsylvania  a  married  woman  has  for 
many  years  been  enabled  by  special  statute  to  sue  for  libel  or  slander 
without  joining  her  husband  ;  but  even  in  those  States,  she  cannot 
sue  her  'husband  for  defaming  her.  (Freet/iy  v.  Freethy,  42  Barb. 
(N.  Y.)  641;  Tibbs  v.  Brown,  2  Grant's  Cas.  (Penn.)  39.)  It  is  sub- 
mitted, however,  that  if  in  England  a  married  woman  carried  on  a 
separate  trade  or  profession,  and  her  husband  libelled  or  slandered 

(374) 


HUSBAND    AND    WIFE.  303 

her  in  the  way  of  such  trade  or  profession,  she  could  sue  him  under 
sect.  12;  such  an  action  was  held  by  Brett,  J.,  to  be  "a  remedy  for 
the  protection  and  security"  of  her  seperate  property  within  sect. 
11  of  the  Act  of  1870,  and  in  the  present  sect.  12  the  same  words 
are  used.  (Summers  v.  Citi/  Bank,  L.  K.  9  ('.  I'.  580;  t3  L.I.  C.  P. 
26.1.)  I  Jut  he  cannot  in  any  case,  not  even  after  they  are  divorced, 
sue  her  for  defamatory  words  published  by  her  during  coverture. 
(Phillips  v.  Barnet,  1.  Q.  B.  1).  436;  45  L.  J.  Q.  B.  l'77;  24  W.  It. 
345;  :54  L.  T.  177.) 

If  the  words  be  spoken  of  the  woman  before  marriage,  the  hus- 
band's name  may  still  be  joined  on  the  writ  ;  if  she  marry  pending 
action,  the  husband  may  be  made  a  party  under  Order  XVII.  r.  !, 
though  this  is  not  necessary  (r.  1).  The  right  of  action  survives  to  the 
wife  on  her  husband's  death,  whether  lie  was  a  party  to  the  action 
or  not;  the  widow  continues  sole  plaintiff  and  the  action  does  not 
abate.  If,  however,  the  wife  dies  before  final  judgment,  the  action 
must  cease  ;  it  cannot  be  continued  by  her  husband  either  jure 
mariti,  or  as  her  administrator. 

If  a  married  woman  fail  in  an  action  of  libel  or  slander,  she  may 
be  condemned  in  costs,  although  her  husband  was  joined  as  a  co- 
plaintiff.  (Netoton  and  wife  v.  Boodle  and  others,  4  C.  B.  359;  18 
L.  J.  C.  P.  73.) 

Illustrations. 

Where  words  actionable  per  se  were  spoken  of  a  married  woman,  she  was  al- 
lowed to  recover  onfy  20s.  damages;  all  the  special  damage  which  she  proved 
at  the  trial  was  held  to  have  accrued  to  her  husband,  and  not  to  her;  he  ought 
therefore  to  have  sued  for  it  in  a  separate  action.  He  could  now  claim  such 
damage  in  his  wife's  action,  if  joined  as  a  co-plaintiff. 

Bengate  andwife  v.  Gardiner,  M.  &  W.  5  ;  2  Jur.  470. 
[*  399]     Where  a  married  woman  lived  in  service  apart  from  her  husband, 
maintaining  herself,  and  was  dismissed  in  consequence  of  a  libellous  letter 
sent  to  her  master,  it  was  held  that  the  husband  could  sue  ;  for  his  was  the 
special  damage. 

Coward  v.  Wellington  (1836),  7  C.  &.  P.  531. 
In  such  a  case,  had  the  cause  of  her  dismissal  been  slanderous  words  not 
actionable  per  se,  the  wife  could  not  (before  the  Married  Women's  Property 
Act,  1870,  at  all  events)  have  sued.  She  would  have  been  held  to  have  suffered 
no  damage  at  all,  her  personal  property  befonging  entirely  to  her  husband. 
Per  Lord  Campbell  in 

Lynch  v.  Knight  and  wife,  9  H.  L.  C.  589  ;  8  Jur.  N.  S.  724  ;  5  L. 
T.  291. 
Action  by  husband  and  wife,  who  kept  a  victualling-bouse,  against  the 
defendant  for  saying  to  the  wife,  "  Thou  art  a  bawd  to  thy  own  daughter," 
whereby  J.  S.  that  used  to  come  to  the  house  forebore,  &c,  to  the  damage  of 
both.  After  a  verdict  for  the  plaintiffs,  judgment  was  staved  "because  the 
words  are  not  actionable,  except  in  respect  of  the  special  loss,  which  is  the 
husband's  only." 

Coleman  and  wife  v.  Haroourt  (1004),  1  Lev.  140. 
The  female  plaintiff  lived  separate  from  her  husband  and  kept  a  boarding- 
house.  The  defendant  spoke  words  imputing  to  her  insolvency,  adultery,  and 
prostitution  ;  some  of  her  boarders  left  her  in  consequence,  and  certain  trades- 
men refused  her  credit.  After  verdict  for  the  plaintiff,  judgment  was  arrested, 
on  the  ground  that  the  husband  should  have  sued  alone,  for  the  words  were 
actionable  only  by  reason  of  the  damage  to  the  business  and  such  damage  was 
solely  his. 

Saville  et  ux.  v.  Sweeney,  4  B.  &  Adol.  514  ;  1  N.  &  M.  254. 
(375) 


304  THE    LAW    OF    PERSONS. 

And  so  in  America  where  a  married  woman  was  living  apart  from  her  hus- 
band under  articles  of  separation,  wherein  the  husband  had  covenanted  that 
she  might  use  his  name  in  suing  for  any  injury  to  her  person  or  character,  and 
the  wife  brought  an  action  for  slander  in  the  joint  names  of  her  husband  and 
herself  ;  the  defendant  induced  the  husband  to  execute  a  deed  releasing  the 
cause  of  action,  and  pleaded  the  release  in  bar  of  the  wife's  action,  and  the 
Court  was  compelled  to  hold  this  deed  a  good  answer  to  the  action. 

Beach  et  ux.  v.  Beach,  2  Hill  (N.  Y.),  260. 
Where  the  libel  imputed  that  the  plaintiff,  a  married  man,  kept  a  gaming- 
house, and  that  his  wife  was  a  woman  of  notoriously  bad  character,  and  the 
wife  fell  ill  and  died  in  consequence,  evidence  of  such  damage  was  excluded  in 
an  action  brought  by  the  surviving  husband. 

Guy  v.  Gregory,  9  C.  &  P.  584. 

And  seeWiison  v.  Gait,  3  Smith  (17  N.  Y.  R.),  445,  ante,  p.  302. 
Words  directly  defamatory  of  the  wife  may  also  be  defamatory  of  the  hus- 
band, who  may  therefore  sue  alone.  Thus,  where  defendant  said  to  plaintiffs 
wife  :  "  You  are  a  nuisance  to  live  beside  of.  You  are  a  bawd  ;  and  your  house 
is  no  better  than  a  bawdy-house,"'  it  was  held  unnecessary  to  make  the  wife  a 
party  to  the  action,  although  the  husband  proved  no  special  damage.  For  had 
the  charge  been  true,  the  plaintiff  might  have  been  indicted  as  well  as  his  wife. 

Buckle  v.  Reynolds,  7  C.  B.  N.  S.  114. 

And  see  Bash  v.  Somner,  20  Pennsylvania  St.  R.  159. 
Where  the  defendant  said  to  the  plaintiff,  an  innkeeper,  "  Thy  house  is 
in[*  400]fected  with  the  pox,  and  thy  wife  was  laid  of  the  pox,"  it  was  held 
that  the  husband  could  sue  ;  for  even  if  small-pox  only  was  meant,  the  words 
were  still  actionable,  "  for  it  is  a  discredit  to  the  plaintiff,  and  guests  would  not 
resort  hither. "    Damages  £50. 

Levet's  Case,  Cro.  Eliz.  289. 
"  If  an  innkeeper's  wife  be  called  '  a  cheat,'  and  the  house  lose  the  trade,  the 
husband  has  an  injury  by  the  words  spoken  of  his  wife."    Per  Wythens,  J.,  in 

Bakhcin  v.  Floicer  (1688),  3  Mod.  120. 

Grove  et  ux.  Hart  (1752),  B.  N.  P.  7  ;  Sayer»33. 

A  husband  is  liable  for  all  libels  published  or  slanders  uttered  by 
his  wife  during  coverture.  "  They  are  the  torts  of  her  husband, 
and  therefore  she  creates  as  against  her  husband  a  liability."  (Per 
Jessel,  M.  R,  in  Wainford  v.  Heyl,  L.  R.  20  Eq.  at  p.  325  ;  44  L. 
J.  Ch.  567  ;  23  W.  R.  848  ;  33  L.  T.  155;)  And  there  is  nothing 
in  any  provision  of  the  Married  Women's  Property  Act,  1882, 
removing  or  affecting  this  liability.  {Seroka  midwife  v.  Kattenburg 
and  wife,  17  Q.  B.  D.  177  ;  55  L.  J.  Q.  B.  375  ;  34  W.  R.  542  ;  54 
L.  T.  649.) 

Hence,  although  a  plaintiff  may  now  sue  the  wife  alone,  if  he 
wishes,  for  any  libel  or  slander  published  by  her  [ante,  p.  396),  it 
will  generally'be  advisable  for  him  to  sue  the  husband  as  well.  For 
if  he  sue  the  wife  alone,  he  can  only  obtain  execution  against  such 
separate  estate  as  she  is  not  restrained  from  anticipating,  unless 
by  reason  of  sect.  19  of  the  Act  of  1882  any  portion  of  such  prop- 
erty shall  be  liable  to  execution  notwithstanding  such  restraint. 
{Bursill  v.  Tanner,  13  Q.  B.  D.  691  ;  32  W.  R.  827  ;  50  L.  T.  589  ; 
Turnbidl  v.  Forman,  15  Q.  B.  D.  234  ;  54  L.  J.  Q.  B.  489  ;  33  W. 
R.  768  ;  53  L.  T.  128.)  And  it  might  be  questioned  whether  any 
separate  estate  which  a  married  woman  acquired  after  the  publica- 
tion complained  of,  and  before  judgment,  would  bo  liable  to  execu- 
tion ;  though  it  would  probably  be  held  that  it  was.  Moreover,  the 
judgment  against  the  wife,  if  sued  alone,  will  release  the  husband 
from  all  liability  for  the  same  tort ;  the  plaintiff  cannot  proceed 

(370) 


HUSBAND    AND    WIFE.  305 

against  him  in  case  the  separate  property  prove  insufficient ; 
whereas,  if  lie  join  both  husband  ami  wife  as  defendants  <»n  his  writ, 
he  can  obtain  judgment  against  the  wife's  separate  estate,  and  also 
against  the  husband  for  the  residue  of  damages  and  costs  not 
recovered  out  of  her  separate  estate. 

When  husband  and  wife  are  both  made  defendants,  they  must 
both  [*  401]  be  served,  unless  the  Court  or  a  judge  shall  otherwise 
order.  (Ord.  IX.  r.  3.)  And  although  in  the  case  of  a  wife's  ante- 
nuptial tort  there  is  an  express  provision  that,  as  between  her  and 
her  husband,  her  separate  estate  shall  be  deemed  to  be  primarily 
liable  for  damages  and  costs  recovered  in  such  an  action,  there  is  no 
such  provision  in  the  case  of  a  post-nuptial  tort.  Hence,  I  presume, 
the  ordinary  rule  applies  ;  and  a  husband  who  has  had  to  pay 
damages  out  of  his  own  pocket  for  his  wife's  words  will  have  no 
remedy  over  against  her  separate  estate.  But  the  plaintiff  may,  of 
course,  if  he  will,  enforce  his  joint  judgment  against  the  separate 
property  of  the  wife,  and  not  against  the  husband.  {Ferguson  v. 
Clayworth  and  wife,  6  Q.  B.  269  ;  13  L.  J.  Q.  B.  329  ;  8  Jur.  709  ; 

2  D.  &  L.  165  ;  lveus  v.  Butler  and  wife,  7  E.  &  B.  159  ;  26  L.  J. 
Q.  B.  145  ;  3  Jur.  N.  S.  334.)  It  is  not  necessary  for  this  purpose 
that  the  trustees  of  her  marriage  settlement  should  be  made  parties 
to  the  action.  (Davies  v.  Jenkins,  6  Ch.  D.  728  ;  46  L.  J.  Ch.  761; 
26  W.  R.  260.)  An  inquiry  will  be  directed  to  ascertain  of  what 
her  separate  estate  consists,  and  in  whom  it  is  vested,  as  in  Collett  v. 
Dickenson,  11  Ch.  D.  687  ;  40  L.  T.  394  ;  and  on  such  inquiry  the 
solicitor  to  the  trustees  will  be  bound  to  state  their  names,  and  to 
produce  the  deed  of  settlement.  (Bursill  v.  Tanner  (C.  A.),  16 
Q.  B.  D.  1  ;  55  L.  J.  Q.  B.  53  ;  53  L.  T.  445.)  So,  too,  though 
husband  and  wife  be  both  sued,  the  wife,  having  general  separate 
estate,  may  be  condemned  in  costs.     (3Iorris  v.  Freeman  and  wife, 

3  P.  D.  65  ;  47  L.  J.  P.  D.  &  A.  79  ;    27  W.  P.  62  ;  39  L.  T.  125.) 
It  is  submitted  that  a  married  woman   cannot  be  sued  alone  for 

any  tort  committed  by  her  during  coverture,  prior  to  January  1st, 
1883  ;  as,  prior  to  the  commencement  of  the  Act  of  1882,  she  was 
not  capable  of  rendering  herself  liable  for  her  own  tort.  The  former 
Married  Women's  Property  Acts  did  not  affect  her  position  as 
defendant.  (Hancocks  &  Co.  JSJadame  Demeric-Lablache,  3  C.  P. 
D.  197  ;  47  L.  J.  C.  P.  514  ;  26  W.  R.  402  ;  38  L.  T.  753.) 

For  all  libels  published,  or  slanders  uttered  by  the  wife  before 
coverture,  her  husband  was  at  common  law  liable  to  the  full  extent. 
But  now  his  liability  is  restricted  in  this  respect.  By  the  Married 
Women's  Property  Act,  1882  (45  &  46  Vict.  c.  75),  s.  13,  "  A  woman, 
after  her  marriage,  shall  continue  to  be  liable  in  respect  and  to  the 
extent  of  her  separate  property  for  all  wrongs  committed  by  [*402]i 
her  before  her  marriage,  and  she  may  be  sued  for  any  liability  in 
damages  or  otherwise  in  respect  of  any  such  wrong,  and  all  sums 
recovered  against  her  in  respect  thereof,  or  for  any  costs  relating 
thereto,  shall  be  payable  out  of  her  separate  property  ;  and,  as 
between  her  and  her  husband,  unless  there  be  any  contract  between 
them  to  the  contrary,  her  separate  property  shall  be  deemed  to  be 

20   LIB.   &  SLAN.  (377) 


306  THE    LAW    CkF    PERSONS. 

primarily  liable  for  all  such  wrongs,  and  for  all  damages  or  costs 
recovered  in  respect  thereof  :  Provided  always,  that  nothing  in  this 
Act  shall  operate  to  increase  or  diminish  the  liability  of  any  woman 
married  before  the  commencement  of  this  Act  for  any  such  wrong, 
except  as  to  any  separate  property  to  which  she  may  become  entitled 
by  virtue  of  this  Act,  and  to  which  she  would  not  have  been  entitled 
for  her  separate  use  under  the  Acts  hereby  repealed  or  otherwise,  if 
this  Act  had  not  passed." 

By  sect.  14,  "A  husband  shall  be  liable  for  all  wrongs  committed 
by  his  wife,  before  marriage,  to  the  extent  of  all  property  whatso- 
ever belonging  to  her  which  he  shall  have  acquired  or  become 
entitled  to  "from  or  through  his  wife,  after  deducting  therefrom  any 
payments  made  by  him,  and  any  sums  for  which  judgment  may 
have  been  bona  tide  recovered  against  him  in  any  proceeding  at 
law,  in  respect  of  any  debts,  contracts,  or  wrongs  for  or  in  respect 
of  which  his  wife  was  liable  before  her  marriage  as  aforesaid,  but 
he  shall  not  be  liable  for  the.  same  any  further  or  otherwise  ;  and 
any  court  in  which  a  husband  shall  be  sued  for  any  suchdebt  (sic) 
shall  have  power  to  direct  any  inquiry  or  proceedings  which  it  may 
think  proper  for  the  purpose  of  ascertaining  the  nature,  amount,  or 
value  of  such  property.  Provided  always,  that  nothing  in  this  Act 
contained  shall  operate  to  increase  or  diminish  the  liability  of  any 
husband  married  before  the  commencement  of  this  Act  for  or  in 
respect  of' any  such  liability  of  his  wife  as  aforesaid." 

Bv  sect.  15,  "  A  husband  and  wife  may  be  jointly  sued  in  respect 
of  any  liability  incurred  by  the  wife  before  mar[*403]riage  as 
aforesaid,  if  the  plaintiff  in  tlie  action  shall  seek  to  establish  his  claim, 
either  wholly  or  in  part,  against  both  of  them;  and  if  in  any  such 
action,  or  in  any  action  brought  in  respect  of  any  such  liability 
against  the  husband,  it  is  not  found  that  the  husband  is  liable 
in  respect  of  any  property  of  the  wife  so  acquired  by  him,  or  to 
which  he  shall  Have  become  so  entitled  as  aforesaid,  he  shall  have 
judgment  for  his  costs  of  defence,  whatever  may  be  the  result 
of  the  action  against  the  wife  if  jointly  sued  with  him  ;  and  in 
any  such  action  against  husband  and  wife  jointly,  if  it  appears 
that  the  husband  is  liable  tor  the  damages  recovered,  or  any 
part  threrof,  the  judgment  to  the  extent  of  the  amount  for 
which  the  husband  is  liable  shall  be  a  joint  judgment  against  the 
husband  personally  and  against  the  wife  as  to  her  separate  property; 
and  as  to  the  residue,  if  any,  of  such  damages,  the  judgment  shall 
be  a  separate  judgment  against  the  wife  as  to  her  separate  property 
only." 

Note,  that  these  sections  do  not  apply  to  any  husband  married 
before  January  1st,  1883.  A  husband' married  before  July  30th, 
1874,  remains  liable  to  the  full  extent  as  at  common  law  ;  though 
of  course  he  is  protected  by  the  Statute  of  Limitations.  Any  hus- 
band married  between  July  30th,  1874,  and  January  1st,  1883,  can 
claim  the  benefit  of  sects.  2  and  5  of  the  act  of  1878  (37  &  38  Vict. 
c.  50),  which  limit  his  liability  for  torts  committed  by  his  wife  dum 
sola  to  the  extent  merely  of  the  property  which  has  vested  in  him 

(378) 


HUSBAND    AND    WIFE.  307 

bv  reason  of  the  marriage.  Such  a  husband  should  he  made  a  joint 
defendant,  and  must  plead  specially  that  no  property  came  to  him 
with  his  wife,  or,  if  any  did  vest  in  him,  that  he  has  been  compelled 
to  devote  the  whole  or  some  portion  of  it  to  paying  other  creditors 
of  hers. 

If  the  husband  dies  before  judgment  the  action  continues  against 
the  widow  ;  if,  however,  the  wife  dies  in  the  lifetime  of  her  husband 
before  judgment,  the  action  immediately  abates,  whether  it  was  for 
a  post-nuptial  or  an  ante-nuptial  toit  {Bell  and  another  v.  Stocker, 
10  Q.  B.  D.  129;  52  L.  J.  Q.  B.  49;  47  L.  T.  024),  unless  he  himself 
[*404]  joined  in  or  authorized  it.  If  they  be  divorced,  the  wife 
must  be  sued  alone;  the  husband  is  released  from  all  liability,  even 
though  the  words  complained  of  were  published  before  the  divorce. 
{Capel  v.  Poioell  and  another,  11  C.B.N.S.  743;  34L.J.C.P.  101;  10 
Jur.  N.  S.  1255;  13  W.  R.  159;  11  L.  T.  421.)  So,  if  the  wife  has 
before  action  obtained  a  judicial  separation  (20  &21  Vict.  c.  85,  88. 
25,26),  or  a  protection  order  still  in  force  (sect.  21).  But  if  the 
husband  and  wife  voluntarily  live  apart  under  a  separation  deed, 
the  common  law  rule  prevails;  the  husband  is  liable  for  her  miscon- 
duct, and  may  be  joined  as  a  defendant,  {Head  v.  Briscoe  et  ax., 
5  C.  &  P.  485;  2  L.  J.  C.  P.  101.) 

A  married  woman  will  be  held  criminally  liable  for  a  libel  she 
has  published.  {By.  Mary  Carllle,  3  B.  &  Aid.  167.  Her  cover- 
ture will,  it  seems,  be  no  defence  to  an  indictment  for  a  misdemean- 
our. (B.  v.  Ingram,  1  Salk.  384;  B.  v.  Cruse  and  Mary  his  wife, 
2  Moo.  C.  C.  53;  8  C.  P.  541.) 

Illustrations. 

Plaintiff  sued  Orchard  and  his  wife  for  slanderous  words  ;  the  jury  found 
that  Orchard  had  spoken  the  words,  but  not  Mrs.  Orchard,  Judgment  against 
the  husband  It  was  moved  in  arrest  of  judgment  that  the  speaking  of  the 
words  could  not  be  a  joint  act,  and  that  if  the  husband  alone  uttered  them, 
the  wife  ought  never  to  have  been  made  a  party  to  the  action.  But  it  was  held 
that  this  defect  was  cured  by  the  verdict,  and  that  the  plaintiff  was  entitled  to 
retain  his  judgment. 

Burcherv.  Orchard  et  ux.  (1652),  Style,  349. 
But  see  StcitJun  etux.  v.   Vincent  et  ux.  (1764),  2  Wils.  227. 
Mrs.  Harwood  slandered  Mrs.  White  ;  wherefore  White  and  wife  sued  Har- 
wood  and  wife.     Pending    action,  Harwood  died,  and  his  widow  remarried. 
The  Court  was  very  much  puzzled,  and  gave  no  judgment,  apparently,  though 
inclining   to  think  that   the  writ  abated.     [I  think  it  would  now   depend  on 
whether  the  widow  had  any  property  at  the  date  of  her  second  marriage  ;  if  so, 
the  second  husband  could  be  added  as  a  co-defendant,  or  the  action  might  pro- 
ceed against  her  alone  ;  if  not,  it  would  certainly  be  but  little  use  continuing  it .  ] 
White  etux.  v.  Harwood  et  vx.  (1648),  Style,  138  ;  Vin.  Abr.  *'  Baron 
and  Feme,"  A.  a. 
Mrs.  Clay  worth  slandered  plaintiff,  who  recovered  40s.  damages  and  costs 
against  her  and  her  husband,  and  took  her  in  execution  under  a  ca.  sa.     The 
[*405]  Court  refused  to  discharge  her  out  of  the  custody  of  the  sheriff  without 
the  clearest  proof  that  she  had  no  separate  propertv. 

Ferr/uson,  v.  Glayworth  and  wife,  6  Q.  B.  269  ;  13  L.  J.  Q.  B.   329  ;  8 

Jur.  709  ;  2  I).  &  L.  165. 
But  now  see  Draycott  v.  Harrison,  17  Q.  B.  D.  147  ;  34  W.  R.  546. 

(379) 


308  THE    LAW    OF    PEBS0NS. 

2.  Infants. 

An  infant  may  bring  an  action  of  libel  or  slander.  He  may  trade, 
and  may  therefore  have  an  action  of  slander  for  words  which  would 
damage  him  in  his  trade.  (Wild  v.  Tomkinson,  5  L.  J.  K.  B.  265.) 
As  to  a  charge  of  crime,  see  ante,  p.  63.  An  infant  sues  by  his  next 
friend,  who  is  personally  liable  for  the  costs  of  the  suit  ( Caley  v. 
Caley,  25  W.  R.  528)  ;  but  security  for  costs  will  not  as  a  rule  be 
required  from  him,  lest  the  infant  should  lose  bis  rights  altogether. 
An  infant  defends  by  a  guardian  ad  litem.  (See  Order  XVI.  rr.  18, 
19,  21  ;  OrderXIII.  r.  1  ;  and  Order  LV.  r.  27.)  A  guardian  ad  litem 
is  not  liable  for  costs,  unless  he  has  been  guilty  of  gross  miscon- 
duct. 

Tbe  infancy  of  the  defendant  is  no  defence  to  an  action  of  libel  or 
slander.  In  Defries  v.  Davis,  7  C.  &  P.  112  ;  3  Dowl.  629,  the 
defendant,  a  lad  of  fifteen,  was  imprisoned  for  default  in  payment 
of  damages  and  costs  for  a  slander. 

An  infant  will  also  be  criminally  liable  for  any  libel,  if  he  be 
above  the  age  of  fourteen.  If  he  be  under  fourteen,  but  above  seven, 
he  might  possibly  be  found  guilty  of  a  libel,  if  evidence  were  given 
of  a  disposition  prematurely  wicked.  But  more  than  the  proof  of 
malice  ordinarily  given  in  cases  of  privilege  would  probably  be 
acquired. 

That  an  infant  has  been  defamed  gives  his  parents  no  right  of 
action,  unless  in  some  very  exceptional  case  it  deprives  the  parent  of 
services  which  the  infant  formerly  rendered,  in  which  case  an  action 
on  the  case  may  lie  for  the  special  damage  thus  wrongfully  inflicted, 
provided  it  be  the  natural  and  probable  consequence  of  the  defend- 
ant's words.  (See  post,  Master  and  Servant,  p.  409.)  A  child  will 
be  held  to  be  the  servant  of  its  parents,  provided  it  is  old  enough  to 
be  capable  of  rendering  them  any  act  of  service.  (Dixon  v.  Bell, 
5  Maule  &  S.  [*406]  198  ;  Hall  v.  Hollander,  4  B.  &  C.  660;  1 
D.  &  R.  133  ;  Evans  v.  Walton,  L.  R.  2  C.  P.  615  ;  15  W.  R. 
1062.) 

3.  Lunatics. 

It  is  almost  inconceivable  that  an  admitted  lunatic  should  bring 
an  action  of  libel  or  slander.  But,  should  such  an  event  happen,  he 
ought  to  sue  by  his  next  friend,  if  he  has  hot  yet  been  found 
of  unsound  mind  by  inquisition  ;  if  he  has  been,  then  by  his  com- 
mittee, who  before  commencing  the  action  must  obtain  the  sanction 
of  the  Lords  Justices  and  of  the  Master  in  Lunacy  in  the  proper 
way. 

Lunatics  defend  an  action  by  their  committee,  if  one  be  appointed, 
and  if  he  has  no  adverse  interest  ;  in  other  cases  by  a  guardian  ad 
litem.  Lunacy  is  in  England,  it  is  said,  no  defence  to  an  action  for 
slander  or  libel.  (Per  Kelly,  C.  B.,  in  Mordaunt  v.  Mordaunt,  39 
L.  J.  Prob.  &  Matr.  59.)  Iii  America,  however,  insanity  at  the  time 
of  speaking  the  words  is  considered  a  defence,  "  where  the  derange- 
ment is  great  and  notorious,  so  that  the  speaking  the  words  could 
produce  no  effect  on  the  hearers,"  because  then  "  it  is  manifest  no 

(380) 


BANKRUPTS,    RECEIVERS,    EXECUTORS,    ETC.  309 

damage  would  be  incurred."     But  where  the  degree  of  insanity  is 

slight,  or  not  uniform,  there  evidence  of  it  is  only  admissible  in  mit- 
igation of  damages.  {Dickinson  v.  Barber,  9  fyng  (.Mass.),  218  ; 
Yeates  et  ux.  v.  Reed' et  ux.,  4  Blackford  (Indiana),  463  ;  Horner  v. 
MarshaWs  Administratrix,  5  Munford  (Virginia),  466  ;  Gates  v. 
Meredith,  7  Ind.  440.) 

A  lunatic  cannot  be  held  criminally  liable  for  a  libel  published 
under  the  influence  of  mental  derangement  ;  but  the  onus  of  pro\ ring 
this  defence  lies  on  the  accused. 

Bankrupts. 

An  undischarged  bankrupt  may  sue  for  and  recover  damages  for 
a  personal  wrong,  such  as  libel  or  slander,  nor  will  such  damages 
pass  to  his  trustee  under  sect.  15  of  the  Bankruptcy  Act,  1869. 
(Dotoling  v.  Browne  (1854),  4  Ir.  [*407]  C.  L.  R.  265  ;  Ex  parte 
Vine,  In  re  Wilson,  8  Ch.  D.  364  ;  26  W.  R.  582  :  38  L.  T.  730.) 
The  right  of  action  is  not  assignable  (Benson  v.  Flower,  Sir  Win. 
Jones,215)  ;  and  the  trustee  cannot  interfere.  Hence  the  defendant 
is  not  entitled  to  security  for  costs  (Andrews  v.  Marris  and 
another,  7  Dowl.  712  ;  Stead  v.  Williams  and  others,  5  C.  B.  528)  ; 
unless  possibly  where  the  plaintiff  becomes  bankrupt  pending  action. 
(Brocklebank  SCo.  v.  King's  Lynn  Steamship  Co.,  3  C.  P.  D. 
365  ;  47  L.  J.  C.  P.  321  ;  38  L.  T.  489  ;  In  re  Carta  Para  Mining 
Co.,  19  Ch.  D.  457;  51  L.  J.  Ch.  191  ;  46  L.  T.  406.)  Neither  the 
bankruptcy  of  the  plaintiff  nor  that  of  the  defendant  is  any  defence 
to  the  action.  If  a  plaintiff  likes  to  sue  an  insolvent  defendant  for 
unliquidated  damages,  he  may  do  so. 

5.  Receivers. 
i 
■  If  receivers  appointed  by  the  Court  in  an  administration  suit  to 
carry  on  a  gazette,  publish  a  libel  therein,  they  are  of  course  personally 
liable  for  damages  and  costs.  The  damages,  it  would  seem,  may  be 
paid  out  of  the  estate,  but  not  the  costs  ;  those  the  receivers  must 
pay  out  of  their  own  pocket.  (Stubhs  v.  Marsh,  15  L.  T.  312.) 
So" in  America.     (Marten  v.   Van  Schaick,  4  Paige,  479.) 

6.  Executors  and  Administrators. 

The  maxim  actio  personalis  cum  personal  moritur  applies  to  all 
actions  of  libel  and  slander.  If,  therefore,  either  party  die  before 
verdict,  the  action  is  at  an  end.  "  There  shall  be  no  abatement  by 
reason  of  the  death  of  either  party  between  the  verdict  or  finding 
of  the  issues  of  fact  and  the  judgment,  but  judgment  may  in 
such  case  be  entered,notwithstanding  the  death."  (Order  XVII.  r.  1.) 
But  if  interlocutory  judgment  be  signed  and  a  writ  of  inquiry  issue, 
and  then  plajntiff  die,Jfinal  judgment  cannot  be  entered.  (8  &  9  Will. 
III.  c.  11,  s.  6  ;  Ireland  v.  Champ  [*408]  neys,  4  Taunt.  884.)  If, 
however,  final  judgment  has  once  been  entered  in  the  plaintiffs 
favour,  and  then  plaintiff  dies  and  defendant  appeals,  the  action  will 

(381) 


310  THE    LAW  OF    PERSONS. 

not  abate  ;  but  the  executors  or  administrators  of  the  late  plaintiff 
may  appear  as  respondents  to  the  appeal.  [Tkoycross  v.  Grant  and 
others  (C.  A.)  4  C.  P.  D.  40  ;  47  L  J.  Q.  B.  676  ;  27  W.  R.  87  ; 
39  L.  T.  618.)  So  in  America.  (Sandford  v.  Bennett,  24  N.  Y. 
20.)  So,  if  either  party  die  after  final  judgment,  execution  can 
issue  under  Order  XLII.  r.  23. 

An  action  in  the  nature  of  slander  of  title  survives  to  the  plaintiff's 
executor  to  the  extent  that  damage  can  be  shown  to  the  plaintiff's 
astate.  (llatchard  v.  Mege  and  others,  3  Times  L.  R,  546  ; 
Weekly  Notes,  1887,  p.  80  :  51  J.  P.  277.) 

7.  Aliens. 

An  alien  friend  residing  abroad  may  sue  in  England  for  a  libel 
or  slander  published  offhim  in  England.  (Pisani  v.  JLawson,  6 
Bing,  N.  C.  90  ;  5  Scott,  418.)  The  place  where  the  words  were 
spoken  or  published  is  a  test  of  jurisdiction  ;  not  the  domicile  of 
the  plaintiff  or  the  defendant.  But  any  plaintiff  whose  ordinary 
place  of  residence  is  not  in  the  British  Isles  may  be  ordered  to  give 
security  for  costs,  unless  he  either  has  real  property  within  jurisdic- 
tion available  in  execution,  or  is  co-plaintiff  with  others  resident  in 
England.  (Order  LXV.  r.  6,  a  ;  31  &  32  Vict.  c.  54,  s.  5  ;  Massey 
v.  Allen,  12  Ch.  D.  807  ;  48  L.  J.  Ch.  692  ;  28  W.  R.  243  ;  41  L. 
T.  788.) 

Every  foreigner  within  jurisdiction,  for  however  short  a  time,  owes 
the  Queen  allegiance  during  his  stay,  and  is  subject  to  our  laws. 
He  will  be  liable,  therefore,  both  civilly  and  criminally,  for  every 
libel  published  within  the  jurisdiction  of  the  English  Courts  ;  he 
will  also  be  civilly  liable  for  every  slander  uttered  within  jurisdic- 
tion. If,  however,  he  has  left  England  before  the  writ  is  issued, 
the  plaintiff  will  have  great  difficulty,  under  the  new  [*409]  Order 
XL,  in  obtaining  leave  to  issue  a  writ.  If  such  leave  be  granted, 
he  must  serve  on  the  defendant  notice  that  the  writ. has  been 
issued,  and  not  the  writ  itself.     (Order  XL  r.  6.)     See  post,  p.  518. 

Illustrations. 

A  French  refugee  in  England  wrote  a  stilted  poem  about  the  apotheosis  of 
Napoleon  Buonaparte,  then  first  consul  of  the  French  Republic,  suggesting 
that  it  would  be  an  heroic  deed  to  assassinate  him.  He  was  held  amenable  to 
the  English  criminal  law,  although  the  libel  was  purely  political,  affected  no 
one  in  the  British  Isles,  and  attacked  the  man  who  was  England's  greatest 
enemy  at  the  time.  The  jury  found  him  guilty  ;  but  war  broke  out  again 
between  England  and  France  soon  afterwards,  and  no  sentence  was  ever  passed. 
R.  v.  Jean  Peltier,  28  Howell's  St.  Tr.  617. 

The  defendant  out  of  jurisdiction  made  a  statement  in  the  nature  of  slander 
of  title  to  the  plaintiff's  ship.  The  Court  refused  to  allow  the  writ  to  be  served, 
although  the  ship  was  at  the  time  within  jurisdiction. 

Casey  v.  Arnott,  2  C.  P.  D.  24 ;  46  L.  J.  C.  P.  3  ;  25  W.  R.  46  ;  35 
L.  T.  424. 

Where  words  spoken  out  of  the  jurisdiction  indirectly  caused  special  damage 
to  the  plaintiff  within  the  jurisdiction,  the  Court  refused  leave  to  issue  a  writ 
to  be  served  out  of  jurisdiction,  on  the  ground  that  such  special  damage  was 
not  an  "act  done"  within  jurisdiction,  within  the  meaning  of  the  former 
Order  XL  r.  1. 

(382) 


MASTER    AND    SERVANT.  311 

Bree  v.  Mareseaux  (C.  A  ),  7  Q.  B.  D.  434 ;   50  L.  J.  Q.  B.  076  •   29 

\V.  H,  858;  44  L.  T.  644,  765. 
But  now   sec  Tozier  and  mft  v.  Hawkins  (U.  A.),  15  Q   B   I)  650 

680  ;  55  L.  J.  (J.  15.  102  ;  34  W.  R.  223. 

8.  3/aster  and  Servant — Principal  and  Agent. 

If  a  servant  or  apprentice  be   libelled  or  slandered  he  can  of 

course  sue  in  his  own  right.  In  some  cases  his  master  also  can  sue 
in  an  action  on  the  case,  if  the  words  have  directly  caused  him 
pecuniary  loss;  e.g.,  if  the  servant  has  been  arrested  and  the 
master  deprived  of  his  services  in  consequence  of  the  defendant's 
words  ;  or  if  in  any  other  way  the  natural  consequence  of  the  words 
spoken  has  been  to  injure  the  master  in  the  way  of  his  trade.  And 
this  [*410j  appears  to  be  the  law  whether  the  words  be  actionable 
per  se  or  not. 

Illustrations. 

If  defendant  threaten  plaintiff's  workmen,  so  that  they  dare  not  go  on  with 
their  work,  and  the  plaintiff  in  consequence  loses  the  profit  he  would  have 
made  on  the  sale  of  his  goods,  an  action  lies. 

Garret  v.  Taylor  (1621),  Cro.  Jac.  567;  1  Roll.  Ahr.  108. 
Sprint/hi  <id  Sjiiti/a'ng  < '».  v.  Riley,  L.  R.  6  Eq.  551  ;  37  L.  J.  Ch.  889  ; 
16  W.  R.  1138  ;  19  L.  T.  64. 
"  Supposing  the  statement  made  not  to  be  slander,  but  something  else  calcu- 
lated to  injure  the  shopkeeper  in  the  way  of  his  trade,  as  for  instance  a  state- 
ment that  one  of  his  shopmen  was  suffering  from  an  infectious  disease,  such  as 
scarlet-fever,  this  would   operate  to  prevent  people  coming  to  the  shop  ;  and 
whether  it  be  slander  or  some  other  statement  which  has  the  effect  I  have  men- 
tioned, an  action  can,  in  my  opinion,  be  maintained  on  the  ground  that  it  is  a 
statement  made  to  the  public  which  would  have  the  effect  of  preventing  their 
resorting  to  the  shop  and  buying  goods  of  the  owner."    Per  Kelly,  C.  B.,  in 
Biding  v.  Smith,  1  Ex.  D.  94. 
Mrs.  Riding  assisted  her  husband  in  his  shop  ;  words  not  actionable  <per  se 
were  spoken  of  her  which  by  natural  consequence  injured  the  trade  of  the  shop. 
Mrs.  Riding  sued  the  speaker,  joining  her  husband  for  conformity.     At  the 
trial  it  became  clear  that  the  only  special  damage  was  to  the  husband.     There- 
upon the  plaintiff's  counsel  applied  to  have  the  wife's  name  struck  off  the 
record.     The  learned  judge  made  the  required  amendment,  and  the  action  then 
became  an  action  by  a  master  for  injury  to  his  husiness  caused  by  slander  of 
his  assistant  in  that  business.     Held,  that  the  action  lay. 

Hiding  v.  Smith,  1  Ex.  D.  91 ;  45  L.  J.  Ex.  281 ;  24  W.  R.  487 ;  34 
L.  T.  500. 

If  any  agent  or  servant  be  in  any  way  concerned  in  writing', 
printing,  publishing,  or  selling  a  libel,  he  will  be  both  civilly  and 
criminally  liable.  If  a  clerk  or  servant  copy  a  libel,  and  deliver  the 
copy  he  has  made  to  a  third  person,  he  will  be  liable  as  a  publisher. 
That  his  master  or  employer  ordered  him  to  do  so,  will  be  no  defence. 
(Per  Wood,  B.,  in  Moloney  v.  Bartley,  3  Camp.  210.)  "For  the 
warrant  of  no  man,  not  even  of  the  king  himself,  can  excuse  the 
doing  of  an  illegal  act  ;  for  although  the  commanders  are  trespassers, 
so  are  also  the  persons  who  did  the  fact."  [Per  cur.  in  /Sands, 
qui  tarn,  <&c.  v.  Child  and  others  (1693),  3  Lev.  352.)  The  atjent  or 
servant  cannot  recover  any  contribution  from  his  employer  [Merry- 
weather  [*  411]  v.  Nixan,  2  Sni.  L.  Cases  (8th  edn.)  546  ;  8  T.  K, 
186)  :  and  any  previous  promise  to  indemnify  him  against  the  con- 

(383) 


312  THE    LAW    OF    PERSONS. 

sequences  of  the  publication,  or  against  the  costs  of  an  action 
brought  for  the  libel,  will  be  void.  (iShackell  v.  Hosier,  2  Bing. 
N.  C.  634  ;  3  Sc.  59.) 

But  it  will  be  a  defence  if  the  agent  or  servant  can  satisfy  the 
jury  that  he  never  read  the  paper  he  delivered,  and  was  wholly 
unaware  that  it  was  a  libel ;  e.  [/.,  where  a  postman  or  messenger 
carries  a  sealed  letter,  of  the  contents  of  which  he  is  ignorant. 

So,  too,  a  servant  or  agent  will  be  liable  for  any  slander  uttered 
on  his  master's  behalf  and  by  his  master's  orders  :  but  here  he  can- 
not set  up  as  a  defence  that  he  did  not  know  his  master's  orders  were 
illegal ;  for  he  must  be  conscious  of  what  he  himself  is  saying. 

Illustrations. 

A  compositor  will  be  criminally  liable  for  setting  up  tbe  type  of  a  libel ;  so 
will  tbe  man  wliose  business  it  is  merely  to  clap  down  the  press. 
R.  v.  Knell  (1728),  1  Barnard.  305. 
E.  v.  Clerk,  1  Barnard.  304. 
A  porter  who,  in  the  course  of  business,  delivers  parcels  containing  libellous 
handbills,  is  not  liable  in  an  action  for  libel,  if  shown  to  be  ignorant  of  the 
contents  of  the  parcel  ;  for  he  is  but  doing  his  duty  in  the  ordinary  way. 
Bay  v.  Bream,  2  M.  &  Rob.  54. 

A  master  or  principal  will  be  liable  to  an  action,  if  false  defam- 
atory words  be  spoken  or  published  by  his  servant  or  agent  with 
his  authority  and  consent.  The  mere  fact  that  the  actual  publisher 
was  the  servant  or  agent  of  the  defendant  is  not  alone  sufficient  ; 
for  authority  to  commit  an  unlawful  act  will  not  in  general  be  pre- 
sumed. It  must  be  further  proved  that  the  servant  or  agent  had 
instructions  from  the  defendant  to  speak  or  publish  the  words  com- 
plained of. 

Where  the  instructions  are  express,  there  can  be  no  difficulty. 
But  the  inclination  of  our  Courts  has  of  late  years  been  not  to  press 
the  doctrine  of  implied  authority  so  far  as  was  done  in  older  cases. 
[*412]  However,  it  is  clear  law  that  the  proprietor  of  a  newspaper 
is  both  civilly  and  criminally  responsible  for  whatever  appears  in  its 
columns,  although  the  publication  may  have  been  made  without  his 
knowledge,  and  in  his  absence.  For  he  must  be  taken  to  have 
ordered  his  servants  to  print  and  publish  whatever  the  editor  might 
send  them  for  that  purpose.  The  proprietor  trusts  to  the  discretion 
of  the  editor  to  exclude  all  that  is  libellous  ;  if  the  editor  fails  in 
this  duty,  still  the  paper  and  all  its  contents  will  be  printed  and  pub- 
lished by  the  proprietor's  servants,  by  virtue  of  his  general  orders. 
So,  if  a  master-printer  has  contracted  to  print  a  monthly  magazine, 
he  will  be  liable  for  any  libel  that  may  appear  in  any  number 
printed  at  his  office.  So,  every  bookseller  must  be  taken  to  have 
told  his  shopmen  to  sell  whatever  books  or  pamphlets  are  in  his 
shop  for  sale  ;  if  any  one  contain  libellous  matter,  the  bookseller  is 
(prima facie  at  all  events)  liable  for  its  publication  by  his  servant 
by  reason  of  such  general  instructions.  But  where  a  master's  orders 
are  such  that  they  can  be  obeyed  without  any  illegality,  he  is  not 
liable  because  his  servant  chooses  to  carry  them  out  illegally  and 

(384) 


MASTER    AND    SERVANT  313 

tortiously,  even  although  the  servant  honestly  believes  that  he  is  best 
serving  his  master's  interests  by  thus  executing  his  business. 

But  although  the  master  has  not  authorized  the  act  of  the  servant, 
still  if  it  was  done  for  his  benefit  and  on  his  behalf,  he  may  subse- 
quently ratify  it.  Omnis  ratihabitio  priori  manclato  cequiparalvr. 
But  "in  order  that  there  may  be  a  valid  ratification,  there  must  be 
both  a  knowledge  of  the  fact  to  be  ratified,  and  an  intention  to  ratify 
it."  (Per  Keating,  J.,  in  Edwards  v.  London  <&  JY.  W.  Ry.  Co., 
L.  R.  5  C.  P.  449.)  The  master  must  do  something  more  than 
merely  stand  by  and  let  the  servant  act.  Non-intervention  is  not 
ratification.  {Moon  v.  lowers,  8  C.  13.  N.  S.  Oil  ;  Weston  v.  Bee- 
man  and  another,  27  L.  J.  Ex.  57.) 

Illustrations. 

At  a  meeting  of  a  board  of  guardians,  at  which  reporters  were  present,  the 
chairman  made  a  statement  reflecting  on  the  plaintiff,  and  added,  "  I  am  glad 
gentlemen  of  the  press  are  in  the  room,  and  I  hope  they  will  take  notice  of  it ; 
publicity  should  be  given  to  the  matter."  Airport  accordingly  appeared  in 
two  local  papers.  Held,  by  the  majority  of  the  Exchequer  Chamber  (three 
judges  against  two)  that  there  was  some  evidence  to  go  to  the  jury  that  the 
[*413]  defendant  had  expressly  authorized  the  publication  of  the  alleged  libel 
in  the  newspapers. 

Parkes  v.  Prescott  and  another,  L.  R.  4  Ex.  169  ;  88  L.  J.  Ex.  105  ; 

17  W.  R.  773  ;  20  L.  T  537. 
See  also  Clay  v.  People,  86  111.  147. 

Twrpley  v.  Blabey,  2  Bing.  N.  C.  437  ;  2  Scott,  642  ;  1  Hodges,  414; 

7  C.  &  P.  395. 

The  defendant's  daughter,  a  minor,  was  authorized  to  make  out  his  bills  and 

write  his  general  business  letters  :  she  chose  to  insert  libellous  matter  in  one 

letter.     The  father  was  held  not  liable  for  the  wrongful  act  of  his  daughter,  in 

the  absence  of  any  direct  instructions. 

Harding  v.  Greening,  8  Taunt.  42  ;  1  Moore,  477  ;  Holt,  N.  P.  531. 
See  Moon  v.  Towers,  8  C.  B.  N.  S.  611. 
The  defendant  Moyes  regularly  printed  Fraser's  Mayazine  ;  but  had  nothing 
to  do  with  preparing  the  illustrations.  One  number  contained  a  libellous 
lithographic  print.  The  defendant,  the  printer,  was  held  liable  for  this  print, 
though  he  had  never  seen  it  ;  because  it  was  referred  to  in  a  part  of  the  accom- 
panying letterpress,  which  had  been  printed  by  his  servants.  A  rule  on  this 
point  was  refused.     The  editor  was  of  course  liable  also. 

Watts  v.  Fraser  and  Moyes,  7  C.  &  P.  369  ;  6  A.  &  E.  223  ;  1  Jur. 
671  ;  1  M.  &  Rob.  449  ;  2  N.  &  P.  157  ;  W.  W.  &  D.  451. 
The  proprietor  of  a  newspaper  will  be  held  liable  for  an  accidental  slip  made 
by  his  printer's  man  in  setting  up  the  type. 

Shepheard  v.  Wliitaker,  L.  R.  10  C.  P.  502  ;  32  L.  T.  402. 
And  for  a  libellous  advertisement  inserted  by  the  editor  without  his  knowl- 
edge. 

Harrison  .v.  Pearce,  1  F.  &  F.  567  ;  32  L.  T.  (Old  S.),  298. 
The  proprietor  of  a  newspaper  in  America  on  going  away  for  a  holiday  ex- 
pressly instructed  his  acting  editor  to  publish  nothing  exceptionable,  personal 
or  abusive,  and  warned  him  especially  to  scan  very  particularly  any  article 
brought  in  by  B.,  who  was  known  to  be  a  "  smart "  writer.  The  editor  per- 
mitted an  article  of  B.'s  to  appear  which  contained  libellous  matter.  The 
proprietor  was  held  liable,  though  the  publication  was  made  in  his  absence  and 
without  his  knowledge. 

Dunn  v.  Hall,  1  Carter  (Indiana),  345  ;  1  Smith,  288. 
Huff  v.  Bennett,  4  Sand.  (New  York),  120. 
Curtis  v.  Muss&y,  6  Gray  (Mass.),  261. 
Andres  v.  Wells,  7  John's.  (New  York)  260. 
(385) 


314  THE    LAW    OF    PERSONS. 

A  master  or  principal  is  criminally  liable  for  any  libel  published 
by  his  servant  or  agent  with  his  authority  or  consent.  At  common 
law  he  was  criminally  liable  for  such  libel,  even  although  he  had  no 
knowledge  of  it,  if  his  servant  was  acting  in  pursuance  of  general 
orders.  Whenever  an  employer  was  civilly  liable  for  a  libel  pub- 
lished by  his  servants,  hewas,  before  Lord  Campbell's  Act,  criminally 
liable  also.  But  now  by  sect.  7  of  that  Act  (6  &  7  Vict.  c.  96), 
[*  414]  it  is  enacted  "that  whensoever,  upon  the  trial  of  any  in- 
dictment or  information  for  the  publication  of  a  libel,  under  the 
plea  of  '  Not  guilty,'  evidence  shall  have  been  given  which  shall 
establish  a  presumptive  case  of  publication  against  the  defendant 
by  the  act  of  any  other  person  by  his  authority,  it  shall  be  com- 
petent to  such  defendant  to  prove  that  such  publication  was  made 
without  his  authority,  consent  or  knowledge,  and  that  the  said 
publication  did  not  arise  from  want  of  due  care  or  caution  on  his 
part."  Hence  the  proprietor  of  a  newspaper  is  no  longer  criminally 
liable  for  a  libel  which  has  appeared  in  it  without  his  knowledge  or 
consent,  merely  because  he  has  given  the  editor  a  general  authority 
to  insert  what  he  thinks  fit  therein.  JR.  v.  Ilolbrook  and  others,  3 
Q.  B.  D.  60  ;  47  L.  J.  Q.  B.  35  ;  26  W.  R.  144  ;  37  L.  T.  530  ;  13 
Cox,  C.  C.  650  ;  4  Q.  B.  D.  42  ;  48  L.  J.  Q.  B.  113  ;  27  W.  R.  313; 
39  L.  T.  536  ;   14  Cox,  C.  C.  185.) 

Illustrations. 

The  defendant  kept  a  pamphlet-shop  :  she  was  sick  and  upstairs  in  bed  :  a 
libel  was  brought  into  the  shop  without  her  knowledge,  and  subsequently  sold 
by  her  servant  on  her  account.  She  was  held  criminally  liable  for  the  act  of  her 
servant,  on  the  ground  that  "  the  law  presumes  that  the  master  is  acquainted 
with  what  his  servant  does  in  the  course  of  his  business." 

R.  v.  Dodd,  2  Sess.  Cas.  33. 

Nutfs  Case,  Fitzg.  47  ;  1  Barnard.  K.  B.  306. 
[But  I  doubt  if  later  judges  would  have  been  quite  so  strit  t  ;  the  sickness  up- 
stairs would  surely  have  been  held  an  excuse,  even  before  the  6  &  7  Vict.  c.  96, 
s.  7,  became  law.     See 

R.  v.  Almon,  5  Burr.  2686.] 
A  libel  was  published  in  a  London  newspaper,  The  Morning  Journal.  At  the 
time  of  publication,  Mr.  Gutch,  one  of  the  proprietors,  was  away  ill  in  Worces- 
tershire, in  no  way  interfering  with  the  conduct  of  the  paper,  which  was 
managed  entirely  by  Alexander  Lord  Tenterden  directed  the  jury  to  find 
Gutch  guilty,  on'the  ground  that  it  was  with  his  capital  that  the  paper  was  carried 
on,  that  he  derived  profit  from  its  sale,  and  that  he  had  selected  the  editor  who 
had  actually  inserted  the  libel.  Lord  Tenterden  the  next  day  admitted  (p.  438) 
that  some  possible  case  might  occur  in  which  the  proprietor  of  a  newspaper 
might  be  held  not  criminally  answerable  for  a  libel  which  had  appeared  in  it. 
Gutch  was  convicted,  but  subsequently  discharged  on  his  own  recognizances. 

R.  v.  Gutch,  Fisher,  and  Alexander,  Moo.  &  Mai.  433. 

R.  v.  Walter,  3  Esp.  21. 

And  see  Attorney- General  v.  Siddon,  1  Cr.  &  J.  220. 
The  defendant  told  the  editor  of  a  newspaper  several  good  stories  against  the 
[*415]  Rev.  J.  K.,  and  asked  him  to  "  show  Mr.  K.  up  ;  "  and  the  editor  subse- 
quently published  the  substance  of  them  in  the  paper,  and  the  defendant  read 
it  and  expressed  his  approval ;  this  was  held  a  publication  by  the  defendant, 
although  the  editor  knew  of  the  facts  from  other  quarters  as  well. 

R.  v.  Cooper,  8  Q.  B.  533  ;  15  L.  J.  Q.  B.  206. 
The  defendants  were  the  proprietors  of  the  Portsmouth  Times  and  Naval 
Gazette  ;  each  of  them  managed  a  different  department  of  the  newspaper,  but 

(386) 


CORPORATIONS    AND    COMPANIES.  315 

the  duty  of  editing  what  was  called  the  literary  department  was  left  by  them 
entirely  to  an  editor  whom  they  had  appointed,  named  Green.  The  libel  in 
question  was  inserted  in  the  paper  by  Green  without  the  express  authority, 
consent,  or  knowledge  of  the  defendants.  At  the  trial  of  a  criminal  informa- 
tion the  judge  directed  a  verdict  of  guilty  against  the  defendants.  Held,  by 
Cockburn,  C.  J.,  and  Lush,  J.,  that  there  must  be  a  new  trial;  for  upon  the  true 
construction  of  6  &  7  Vict.  c.  96,  s.  7,  the  libel  was  published  without  the  de- 
fendants' authority,  consent,  or  knowledge,  and  it  was  a  question  for  the  jury 
whether  the  publication  arose  from  any  want  of  due  care  and  caution  on  their 
part:  by  Mellor,  J.,  dissenting,  that  the  defendants,  having  for  their  own 
benefit  employed  an  editor  to  manage  a  particular  department  of  the  newspaper, 
and  given  him  full  discretion  as  to  the  articles  to  be  inserted  in  it,  must  be  taken 
to  have  consented  to  the  publication  of  the  libel  by  him  ;  that  C  &  7  Vict.  c.  96, 
s.  7,  had  no  application  to  the  facts  proved,  and  that  the  case  was  properly 
withdrawn  from  the  jury. 

R.  v.  Eolbrbok  and  others,  3  Q.  B.  D.  60;  47  L.  J.  Q.  B.  35;  26  W.  It. 
144  ;  37  L.  T.  530  ;  13  Cox,  C.  C.  650. 
On  the  new  trial  Green  was  called  as  a  witness,  and  stated  that  he  had  general 
authority  to  conduct  the  paper,  that  the  defendants  left  it  entirely  to  his  discre- 
tion to  insert  what  he  pleased,  and  that  he  had  allowed  the  letter  complained  of 
to  appear  in  the  paper  without  the  knowledge  or  express  authority  of  the  de- 
fendants, one  of  whom  was  absent  from  Portsmouth  at  the  time.  The  jury 
found  all  the  defendants  guilty.  On  a  motion  for  a  new  trial,  on  the  ground 
that  the  verdict  was  against  evidence,  and  of  misdirection,  held  by  (Cockburn, 
C.  J.,  and  Lush,  J.,  Mellor,  J.,  still  dissenting),  that  the  general  authority  given 
to  the  editor  was  not  per  se  evidence  that  the  defendants  had  authorized  or 
consented  to  the  publication  of  the  libel,  within  the  meaning  of  6  &  7  Vict, 
c.  96,  s.  '7,  and  that,  as  the  learned  judge  at  the  trial  had  summed  up  in  terms 
which  might  have  led  the  jury  to  suppose  that  it  was,  and  the  jury  had  ap- 
parently given  their  verdict  on  that  footing,  there  must  be  another  new  trial. 

R.  v.  Eblbrook  and  others,  4  Q.  B.  D.  42  ;  48  L.  J.  Q.  B.  113  ;  27 
W.  R.  313  ;  39  L.  T.  536  ;  14  Cox,  C.  C.  185. 
The  prosecutor,  Mr.  John  Howard,  Clerk  of  the  Peace  for  the  borough  of 
Portsmouth,  died  shortly  afterwards,  so  the  proceedings  dropped,  and  no  third 
trial  ever  took  place. 

And  see  R.  v.  Bradlaugh  and  others,  15  Cox,  C.  C.  217,  iwst,  p.  436. 

R.  v.  Ramsey  and  Foote,  15  Cox,  C.  C.  231. 

9.    Corporations  and   Companies. 

A  corporation  may  sue  for  any  libel  upon  it,  as  distinct  from  a 
libel  upon  its  individual  members.  It  may  also  [*416]  sue  for  a 
slander  upon  it  in  the  way  of  its  business  or  trade.  If,  however, 
the  corporation  be  not  engaged  in  any  business,  it  would  probably 
be  necessary  to  prove  special  damage  in  any  case  of  slander,  and 
this  would  be  difficult. 

A  corporation  "  could  not  sue  in  respect  of  an  imputation  of 
murder,  or  incest,  or  adultery,  because  it  could  not  commit  those 
crimes.  Nor  could  it  sue  in  respect  of  a  charge  of  corruption  ;  for 
a  corporation  cannot  be  guilty  of  corruption,  although  the  indi- 
viduals composing  it  may  be."     (Per  Pollock,  C.  B.,  4  H.  &  N.  90.) 

The  law  is  the  same  with  regard  to  unincorporated  trading  com- 
panies, which  may  sue  for  libel  in  the  manner  directed  by  the 
special  Act  creating  them,  or  any  statute  applicable  to  them. 
(  Williams  v.  Beaumont,  10  Bing.  260  ;  3  M.  &  Scott,  7Q5.) 

Corporations  and  companies  may  maintain  actions  for  slander  of 
their  title  ;  whether  the  slander  be  uttered  by  one  of  their  own 
members  or  by  a  stranger.     (Metropolitan  Omnibus  Co.  v.  Haickins, 

(387) 


31 G  THE    LAW    OF    PERSON'S. 

4  H.  &  N.  87  ;  28  L.  J.  Ex.  201  ;  5  Jur.  N.  S.  226  ;  7  W.  R.  265  ; 
32  L.  T.  (Old  S.)  281  ;  Trenton  Insurance  Co.  v.  Perrine,  3  Zab. 
(New  Jersey)  402.) 

A  corporation  is  not,  it  is  submit  ted,  liable  for  any  slander  uttered 
by  an  officer,  even  though  lie  honestly  believe  that  he  is  acting 
for  the  benefit  of  the  company  and  within  the  scope  of  his 
duties  ;  unless  it  can  be  proved  that  the  corporation  expressly 
ordered  and  directed  that  officer  to  say  those  very  words. 

A  corporation  will  be  liable  to  an  action  for  a  libel  published  by 
its  servants  or  agents,  whenever  such  publication  comes  within  the 
scope  of  the  general  duties  of  such  servants  or  agents,  or  whenever 
the  corporation  has  expressly  authorized  or  directed  such  publica- 
tion. (See  ante,  Master  and  /Servant,  p.  411  ;  Yarborough  v.  Hank 
of  England,  16  East,  6  ;  11.  v.  City  of  London,  E.  B.  &  E.  122,  n.  ; 
Latimer  v.  Western  Morning  News  Co.,  25  L.  T.  44  ;  Abrath  v. 
North  Eastern  Rym  Co.,  11  App.  Cas.  253,  254  ;  55  L.  J.  Q.  B. 
460  ;  55  L.  T.  65,  66.  And  in  America,  Aldrich  v.  Press  Print- 
[*417]  ing  Co.,  9  Min.  133  ;  Johnson  v.  St.  Louis  Dispatch  Co., 
65  Missouri,  539  ;  2  M.  App.  R.  565  ;  27  Amer.  R.  293.) 

Whether  a  corporation  can  be  guilty  of  malice,  so  as  to  destroy 
a  primd  facie  privilege  arising  from  the  occasion  of  publication, 
has  not  yet  been  decided  ;  but  semble  (per  Lord  Campbell,  C.  J., 
E.  B.  &  E.  121  ;  27  L.  J.  Q.  B.  231)  it  can. 

A  corporation  can  be  indicted  for  libel  and  fined.  (Per  Lord 
Blackburn  in  Pharmaceutical  Society  v.  London  and  Provincial 
Supply  Association,  5  App.  Cas.  869,  870  ;  49  L.  J.  Q.  B.  742  ;  28 
W.  R.  960  ;  43  L.  T.  389  ;  dissenting  from  the  remarks  of  Bram- 
well,  L.  J.,  in  the  Court  below,  5  Q.  B.  D.  313  ;  49  L.  J.  Q.  B.  338; 
28  W.  R.  698  ;  42  L.  T.  569.) 

Illustrations. 

A  joint-stock  company,  incorporated  under  the  19  &  20  Vict.  c.  47,  may  sue 
in  its  own  corporate  name  for  words  imputing  to  it  insolvency,  dishonesty,  and 
mismanagement  of  its  affairs,  and  this  although  the  defendant  be  one  of  its 
own  shareholders. 

Metropolitan  Omnibus  Go.  v.  Hawkins,  4H.  &  N.  87  ;  28  L.  J.  Ex. 
201  ;  5  Jur.  N.  S.  226  ;  7  W.  R.  265  ;  32  L.  T.  (Old  S.)  281. 
Where,  before  the  19  &  20  Vict.  c.  47,  a  joint-stock  insurance  company, 
though  not  incorporated,  was  authorized  by  statute  to  sue  in  the  name  of  its 
chairman,  it  was  held  that  the  chairman  might  bring  an  action  for  a  libel 
which  attacked  the  mode  in  which  the  company  carried  on  its  business. 
Williams  v.  Beaumont,  10  Bing.  260  ;  3  M.  &  Scott,  705. 
A  railway  company  was  held  liable  for  transmitting  a  telegram  to  the  effect 
that  the  plaintiff's  bank  had  stopped  payment. 

Whitfield  and  others  v.  South  Eastern  Railway  Co.,  E.  B.  &  E.  115  ,• 
27  L.  J.  Q.  B.  229  ;  4  Jur.  N.  S.  688. 

10.  Partners. 

Partners  could  always  jointly  sue  for  a  libel  defamatory  of  the 
firm.  (  Ward  and  another  v.  Smith,  6  Bing.  749  ;  4  C.  &  P.  302  ; 
LeEanu  v.  Malcolmson,  1  H.  L.  C.  637.)  But  in  such  an  action 
no  damages  could  formerly  have  been  given  for  any  private  injury 

(,388) 


PARTNERS    AND    OTHER    JOINT    PLAINTIFFS.  317 

thereby  caused  to  any  individual  partner  ;  nor  for  the  injury  to  the 
feelings  of  each  member  of  the  firm.  Only  joint  damages  could  b<- 
[*41 8 J  recovered  in  the  joint  action  ;  for  the  basis  of  such  action 
was  the  injury  to  their  joint  trade.  {Haythom  v.  Lawson,  3  C. 
&  P.  196  ;  liobimon  v.  Marchant,  7  (L>.  15.  918  ;  15  L.  J.  Q.  B. 
134.)  But  now,  by  virtue  of  Order  XVIII.  r.  (j,  "  claims  by  plain- 
tiffs jointly  may  be  joined  with  claims  by  them  or  any  of  them  sep- 
arately against  the  same  defendant."  (And  see  Order  XVI.  r.  1.) 
Hence  it  is  no  longer  necessary  to  bring  two  actions  for  the  same 
words  :  each  individual  partner  should  be  flamed  on  the  writ,  and 
he  can  then  recover  separate  damages  for  any  special  injury  done 
to  himself,  the  firm  at  the  same  time  recovering  their  joint  dam- 
ages. (See  Booth  and  others  v.  Briscoe,  2  Q.  B.  I).  400  ;  25  W. 
R.  838  ;  post,  p.  419.)  If,  however,  one  partner  he  defamed  as  to 
his  private  life,  the  conduct  of  the  firm  not  being  attacked  directly 
or  indirectly,  nor  any  special  damage  resulting  to  them  from  de- 
fendant's words,  then  the  individual  partner  should  sue  alone. 

If  a  partner  in  conducting  the  business  of  a  firm  causes  a  libel  to 
be  published,  the  firm  will  be  liable  as  well  as  the  individual  part- 
ner. So,  if  an}- agent  or  servant  of  the  firm  delaines  any  one  by 
the  express  direction  of  the  firm,  or  in  accordance  with  the  general 
orders  given  by  the  firm  for  the  conduct  of  their  business  ;  ante,  p. 
411.  But  if  there  be  any  doubt  as  to  the  liability  of  the  firm,  it  is 
always  safer  to  join  the  individual  partner  or  agent  or  servant  as  a 
co-defendant  with  the  firm.     (See  Order  XVI.  rr.  4,  7.) 

Illustrations. 

If  one  partner  be  libelled  in  his  private  capacity  he  cannot  recover  for  any 
special  damage  which  has  resulted  to  the  business  of  the  firm.     All  the  partners 
should  sue  for  that  jointly.     They  may  now  do  so  in  the  same  action. 
Solomons  and  others  v.  Medex,  1  Stark.  11)1. 
llobinsoii  v.  Marchant,  7  Q.   B.  918  ;  15  L.  -J.  Q.  B.    134  ;  10  Jur 

156. 
Cook  and  another  v.  Batchellor,  3  Bos.  &  Pul.  150. 
Maitland  and  others  v.  Qoldney  and  another,  2  East,  426. 
Similarly,  if  the  firm  be  libelled  as  a  body,  they  cannot  jointly  recover  for 
any  private  injury  to  a  single  partner  ;  though  that  partner  may  now  recover 
his  individual  damages  in  the  same  action. 

Haythom  v.  Lawson,  3  C.  &  P.  196. 

LeFanu  v.  Malcolmson,  1  H.  L.  C.  637  :  13  L.   T.  (O.  S.)  61  •  8  Ir 
L.  R.  418. 
[*  419]  But  if  insolvency  be  imputed  to  one  member  of  a  firm,  this  is  a  reflec- 
tion on  the  credit  of  the  firm  as  well  :  therefore  either  he,  or  the  firm,  or  both, 
may  sue,  each  for  their  own  damages. 

Harrison  v.  Bevington,  8  C.  &  P.  708. 

Foster  and  others  v.  Lawson,  3  Bing.  452  ;  11  Moore,  360. 

11.    Other  Joint  Plaintiffs. 

"  All  persons  may  be  joined  as  plaintiffs  in  whom  the  right  to  any 
relief  claimed  is  alleged  to  exist,  whether  jointly,  severally,  or  in 
the  alternative.  And  judgment  may  be  given  for  such  one  or  more 
of  the  plaintiffs  as  may  be  found  to  be  entitled  to  relief,  for  such 
relief  as  he  or  they  may  be  entitled  to,  without  any  amendment. 

(389) 


318  THE    LAW    OF    PERSONS. 

But  the  defendant,  though  unsuccessful,  shall  be  entitled  to  his 
costs  occasioned  by  so  joining  any  person  who  shall  not  be  found 
entitled  to  relief,  unless  the  Court  or  a  judge  in  disposing  of  the 
costs  shall  otherwise  direct."     (Order  XVI.  r.  1.) 

By  virtue  of  this  rule,  an  action  of  libel  or  slander  may  now  be 
brought  by  two  or  more  persons  jointly,  although  they  are  not  in 
partnership  or  otherwise  jointly  interested.  Barratt  v.  Collins,  10 
Moo.  451,  must  be  considered  overruled.  The  damages  in  such  an 
action  ought  to  be  claimed  and  assessed  separately  ;  but  if  they  be 
assessed  jointly,  and  the  plaintiffs  be  content  with  such  a  verdict, 
the  defendant  cannot  avail  himself  of  the  defect.  {Booth  and  others 
v.  Briscoe,  2  Q.  B.  D.  496  ;  25  W.  R.  838.) 

Illustrations. 

A  charity  near  Wisbeach  was  managed  by  a  body  of  trustees,  eight  in  num- 
ber. A  libellous  letter  was  published  in  the  Wisbeach  Chronicle,  imputing  to 
the  trustees  misconduct  in  the  management  of  the  funds  of  the  charity.  The 
eight  trustees  sued  the  proprietor  of  the  paper  in  one  joint  action  for  the  libel. 
Held,  that  they  were  empowered  so  to  do  by  Order  XVI.  r.  1  ;  although  before 
the  Judicature  Act,  it  would  never  have  been  allowed.  The  jury  having  re- 
turned a  single  verdict  for  the  plaintiffs,  damages  40s.,  the  Court  of  Appeal 
refused,  on  the  motion  of  the  defendant,  to  disturb  the  verdict. 

Booth  and  others  v.  Briscoe,  2  Q.  B.  D.  496  ;  25  W.  R.  838. 

[*  420]  Two  co-proprietors  of  a  newspaper  may  sue  jointly  for  a  libel  on  their 
paper  without  proving  special  damage  ;  and  the  jury  may  find  the  damages 
generally. 

Russell  and  another  v.  Webster,  23  W.  R.  59. 

12.  Joint  Defendants. 

"  All  persons  may  be  joined  as  defendants  against  whom  the  right 
to  any  relief  is  alleged  to  exist,  whether  jointly,  severally,  or  in  the 
alternative.  And  judgment  may  be  given  against  such  one  or  more 
of  the  defendants  as  may  be  found  to  be  liable,  according  to  their 
respective  liabilities,  without  any  amendment."  (Order  XVI.  r.  4  ; 
and  see  rr.  5,  7.) 

Under  these  rules  a  joint  action  can  now  be  maintained  against 
two  or  more  persons  for  slander.  Formerly  this  was  impossible. 
( Chamberlain  v.  White,  Cro.  Jac.  647  ;  S.  C,  sub  nomine  Cham- 
berlaine  v.  Willmore,  Palm.  313.)  Even  if  husband  and  wife  uttered 
similar  words  simultaneously,  there  were  two  separate  publications, 
and  an  action  had  to  be  brought  against  the  husband  alone  for  what 
he  said  ;  against  both  husband  and  wife  for  her  words.  {Burcher 
v.  Orchard  et  ux.  (1652),  Style,  349  ;  ante,  p.  404  ;  Sioithin  et  ux.  v. 
Vincent  etux.  (1764),  2  Wils.  227  ;  and  in  America,  Tail  v.  Cul- 
bertson,  57  Barb.  9.)  But  with  libel  it  was  different  ;  the  publica- 
tion of  a  libel  might  well  be  the  joint  act  of  two  or  more  persons, 
who  might  in  such  a  case  be  sued  either  jointly  or  separately  at  the 
election  of  the  plaintiff.  Thus,  if  a  master  and  servant  jointly  pub- 
lished a  libel,  they  might  always  have  been  jointly  sued  in  the  same 
action.  But  if  there  were  two  distinct  publications  of  the  same 
libel,  one  by  A.  separately,  the  other  by  B.,  two  actions  must  for- 

(390) 


JOINT    DEFENDANTS.  319 

merly  have  been  brought,  one  for  each  publication.  Now,  however, 
a  plaintiff  can,  if  he  like,  sue  both  A.  and  15.  in  the  same  action, 
and  recover  from  each  damages  proportioned  to  the  injury  each 
publication  has  caused  him. 

But  the  plaintiff  is  not  now,  and  never  was,  obliged  to  join  as  a 
defendant  every  person  who  was  liable.  He  may,  if  he  prefers,  sue 
only  one  or  two  ;  and  the  liability  of  the  others  will  be  no  defence 
for  those  sued,  and  will  not  mitigate  the  damages  recoverable.  And 
the  defendants  sued  cannot  recover  any  share  of  damages  or  costs 
from  the  [*42l]^  others,  who  might  have  been,  but  are  not,  sued. 
(Colburn  v.  Patmore,  1  C.  M.  &  R.  73;  4  Tyr.  677.)  But  the 
judgment  against  these  is  a  bar  to  any  subsequent  action  on  the 
same  publication  against  any  one  else  who  was  jointly  liable  with 
them  therefor  :  see  post,  p.  522. 

Joint  defendants  may  counter-claim  jointly,  or  one  or  more  of 
them  separately,  against  the  plaintiffs,  or  some  or  one  of  them,  jointly 
or  separately,  or  against  one  plaintiff  and  a  third  party.  (See 
Order  XVI.  r.  3.)  Such  a  counter-claim  will,  however,  be  struck 
out  if  it  cannot  be  conveniently  disposed  of  in  the  pending  action ; 
see  post,  p.  543. 

Illustration. 

The  members  of  the  committee  of  the  Reform  Union  were  held  jointly  liable 
for  publishing  a  report  charging  the  plaintiff  and  others  by  name  with  bribery 
at  the  Berwick  election. 

Wilson  v.  Reed  and  others,  2  F.  &.  F.  149. 


(391) 


[*422]  CHAPTER  XV. 

CRIMINAL    LAW. 

It  is  a  misdemeanour  at  common  law,  punishable  on  indictment 
or  information  with  fine  and  imprisonment,  to  speak  any  blasphe- 
mous,obscene,  or  seditious  words  in  the  hearing  of  others.  A  fortiori, 
it  is  a  misdemeanour  to  write  and  publish  blasphemous,  obscene,  or 
seditious  words. 

It  is  a  misdemeanour  at  common  law,  punishable  on  indictment 
or  information  with  fine  and  imprisonment,  to  write  and  publish 
defamatory  words  of  any  living  person,  or  exhibit  any  picture  or 
effigy  defamatory  of  him.  It  is  not  a  crime  merely  to  speak  such 
words,  however  maliciously. 

A  libel  on  a  thing  is  no  crime  ;  and  wherever  no  action  would  lie 
without  proof  of  special  damage,  no  indictment  or  information  can 
be  preferred. 

Whatever  words  would  be  deemed  defamatory  of  a  living  person 
in  any  civil  action  will  be  held  a  libel  on  the  trial  of  an  indictment. 
All  the  rules  laid  down  in  Chapters  II.,  III.,  VIII.,  IX.,  as  to  Bona 
Fide  Comment,  Construction  and  Certainty,  Privilege,  and  Malice, 
apply  equally  to  civil  and  criminal  proceedings. 

It  will  be  an  aggravation  of  the  offence,  if  the  person  libelled  be 
a  foreign  prince,  statesman  or  ambassador  ;  for  such  a  libel  would 
embarrass  the  government,  and  might  disturb  the  friendly  relations 
between  England  and  that  foreign  country.      (See  post,  p.  430.) 

It  is  a  misdemeanour  at  common  law,  punishable  on  indictment 
with  fine  and  imprisonment,  to  write  and  publish  defamatory  words 
of  any  person  deceased  ;  provided  it  [*423]  be  alleged  and  proved 
that  this  was  done  with  intent  to  bring  contempt  and  scandal  on  his 
family  and  relations  and  so  provoke  them  to  a  breach  of  the  peace. 
(5  Rep.  125«  ;  Hawkins,  P.  C.  i.  542  ;  R.  v.  Topham,  4  T.  R.  126.) 

It  is  also  a  misdemeanour  to  libel  any  sect,  company  or  class  of 
men,  without  mentioning  any  person  in  particular  ;  provided  it  be 
alleged  and  proved  that  such  libel  tends  to  excite  the  hatred  of  the 
people  against  all  belonging  to  such  sect  or  class,  and  conduces  to 
a  breach  of  the  peace.     (R.  v.    Gathercole,  2  Lewin,  C.  C.  237.) 

Such  intention  may  sufficiently  appear  from  the  words  of  the 
libel  itself,  or  it  may  be  proved  by  the  consequences,  if  any,  of  its 
publication. 

The  criminal  remedy  for  libel,  as  it  is  the  earlier,  so  it  is  the  more 
extensive  remedy  ;  a  libel  may  be  indictable,  though  it  be  not 
actionable.     Thus  in  neither  of  the  above  cases  would  an  action 

(.392) 


CRIMINAL   LAW.  321 

lie,    for    want  of  a  proper    plaintiff.     (And    see    H.    v.  Darby,  3 
Mod.  139.) 

In  Reg.  pros.  Vallombrosa  v.  -Labouchere,  12  Q.  B.  D.  320  ;  53 
L.  J.  Q.  B.  362  ;  32  W.  R.  861  ;  50  L.  T.  177;  15  Cox,  C.  C.  415  ; 
48  J.  P.  165,  the  Court  expressed  some  doubt  as  to  whether  it  was 
a  crime  to  libel  a  dead  man,  but  abstained  from  expressing  any 
decided  opinion  on  the  point.  This  doubt  certainly  operated  as 
one  reason  among  others  for  refusing  (lie  extreme  remedy  of  a 
criminal  information  in  that  case  ;  and  it  will  thus  be  very  difficult 
to  obtain  a  criminal  information  in  any  subsequent  case  of  libel  on 
a  person  deceased.  But  these  dicta  do  not  appear  to  me  to  at  all 
affect  the  remedy  by  way  of  indictment,  and  I  think  the  law 
remains  as  stated  above.  See,  however,  H.  v.  Ensor,  3  Times  L. 
R.  366. 

It  is  not  necessary  to  prove  that  the  libeller  in  fact  desired  that  a 
breach  of  the  peace  should  follow  on  his  publication  ;  that  is  prob- 
ably the  last  thing  he  wished  for  ;  still  less  is  it  necessary  to  prove 
that  an  actual  assault  ensued,  though,  if  it  did,  evidence  of  such 
assault  is  admissible.  (7?.  v.  Osborn,  Kel.  230;  2  Barnard.  138, 
166.)  It  is  sufficient  if  the  necessary  or  natural  effect  of  defendant's 
words  is  to  vilify  the  memory  of  the  deceased  and  to  injure  his 
posterity  to  such  an  extent  as  to  render  a  breach  of  the  peace  im- 
minent or  probable. 

Illustrations. 

Libel  complained  of  :  "On  Saturday  evening  died  of  the  small-pox  at  his 
house  in  Grosvenor  Square,  Sir  Charles  Gaunter  Nicoll,  Knight  of  the  Most 
Honour  [*  424]  able  Order  of  the  Bath,  and   representative  in  Parliament  for 

the  town  of  Peterborough He  could  not  be  called  a  friend  to  his 

country,  for  he  changed  his  opinions  for  a  red  ribbon,  and  voted  for  that  per- 
nicious object,  the  excise."  It  was  alleged  that  this  passage  was  published 
with  intent  to  vilify,  blacken,  and  defame  the  memory  of  the  said  Sir  Charles, 
and  to  stir  up  the  hatred  and  evil  will  of  the  people  against  the  family  and 
posterity  of  the  said  Sir  Charles.  An  information  was  granted. 
_  R.  v.  GHtchley  (1734),  4  T.  R.  129,  n. 

But  an  indictment  which  alleged  that  a  libel  on  the  late  Earl  Cowper  had 
been  published  with  intent  to  disgrace  and  vilify  his  memory,  reputation,  and 
character,  but  did  not  go  on  to  aver  any  intent  to  create  ill  blood  or  throw 
scandal  on  the  children  and  family  of  Earl  Cowper,  or  to  provoke  them  to  a 
breach  of  the  peace,  was  held  bad,  after  a  verdict  of  guilty,  and  judgment 
arrested. 

R,  v.  Topham,  4  T.  R.  126. 

And,  afgrtiori,  to  discuss  the  characters  of  deceased  statesmen  and  noblemen, 
as  a  matter  of  history,  is  no  crime. 

Per  Lord'Kenyon,  C.  J.,  ib.  129. 

But  if  in  discussing  the  character  and  policy  of  William  III.  and  George  I., 
discredit  is  thrown  on  the  character  and  administration  of  the  present  king 
(George  II.),  with  intent  to  spread  dissatisfaction  among  his  subjects,  the  pub- 
lication is  a  seditious  libel. 

R.  v.  Dr.  Shebbeare  (1758),  cited  in  Lord  Mansfield's  judgment  in 
R.  v.  Dean  of  St.  Asaph.  3  T.  R.  430,  n. 

The  defendant  published  a  sensational  account  of  a  cruel  murder  committed 
by  certain  Jews  said  to  have  lately  arrived  from  Portugal,  and  then  living  near 
Broad  Street.  They  were  said  to  have  burnt  a  woman  and  a  new-born  baby, 
because  its  father  was  a  Christian.  Certain  Jews  who  had  arrived  from  Por- 
tugal, and  who  then  lived  in  Broad  Street,  were  attacked  by  the  mob,  bar- 
barously treated,  and  their  lives  endangered.  A  criminal  information  was 
21  LI3.  &  SLAN.  (393) 


322  CRIMINAL    LAW. 

granted,  although  it  was  objected  that  it  did  not  appear  precisely  who  were  the 
persons  accused  of  the  murder. 

Ji.  v.  Osbom,  Kcl.  2:i();  2  Barnard.  138,  166. 
It  is  a  crime  to  write  of  a  Roman  Catholic  nunnery  that  it  is  a  "brothel  of 
prostitution  ;"  for  this  is  an  aspersion  on  the  characters  of  the  nuns  in  general, 
though  none  are  singled  out  by  name. 

R  v.  Qathercole  (1838),  2  Lew.  C.  C.  237. 

R.  v.  J.  A.  Williams  (1822),  2  B.  &  Aid.  595  ;  2  Townsend's  .Modern 

State  Trials,  231. 

A  pamphlet  reflecting  on  the  government  and  asserting  that  its  officers  are 

corrupt,  ignorant,  and  incapable,  will  be  a  libel,  and  punishable  as  a  crime  ; 

although  no  particular  member  of  the  government,  and  no  individual  officer,  is 

mentioned  or  referred  to. 

R.  v.  Tutrhiti,  14  Howell's  St.  Tr.  1095  ;  5  St.  Tr.  527  ;  Holt,  56  ;  2 
Lord  Raym.  1061  ;  1  Salk.  50  ;  6  Mod.  268. 
A  notice  was  posted  in  church  calling  attention  to  certain  abuses  permitted 
by  "the  trustees"  of  Lambeth  workhouse  ;  an  information  was  granted  on  be- 
half of  the  whole  body  of  trustees  [although  the  trustees  could  not  before  the 
Judicature  Act  have  jointly  sued  for  the  libel ;  ante,  p.  419]. 
R.  v.  Griffin,  1  Sess.  Cas.  257. 
[*425]  An  information  was  granted  for  a  libel  commencing  : — "  Whereas  an 
East  India  director  has  raised  the  price  of  green  tea  to  an  extravagant  rate," 
although  there  was  nothing  to  show  which  particular  director  was  intended. 
Ji.  v.  Jenuur,  7  Mod.  400. 
But  an  indictment  for  a  libel  on  "  persons  to  the  jurors  unknown  "  is  bad, 
even  after  verdict. 

Ji.  v.  Orme  (vel  Alme)  and  Mitt,  1  Ld.  Raym.  486  ;  8  Salk.  224. 

It  is  a  misdemeanour  at  common  law  to  utter  words  which  amount 
to  a  direct  challenge  to  fight  a  duel,  or  to  utter  insulting  words  with 
the  intention  of  provoking  another  to  send  a  challenge.  ( /v. v.  Philippe, 
6  East,  464,  and  note  on  p.  476.)  A  fortiori,  it  is  a  misdemeanour 
to  write  a  challenge  or  to  consciously  deliver  a  written  challenge. 
And  indeed  all  words  which  amount  to  a  solicitation  to  commit  a 
crime,  whether  spoken  or  written,  are  indictable,  whether  the 
person  solicited  commit  the  crime  or  not.  (72.  v.  Iliggins,  2 
East,  5.) 

It  is  also  said  to  be  a  misdemeanour  to  fabricate  and  publish  false 
news  in  writing  (Dig.  L.  L.  23),  or  to  endeavour,  by  spreading  false 
rumours,  to  raise  or  lower  the  price  of  food  or  merchandise.  (See 
B.  v.  Waddington  (1800),  1  East,  143.)  According  to  Scroggs,  J., 
it  is  a  misdemeanour  to  publish  any  news  at  all,  though  true  and 
harmless.  (See  1 1  Ilargrave's  St.  Tr.  322.)  Where  eight  persons 
combined  to  raise  the  price  of  Government  stocks  on  Feby.  21st, 
1814,  by  spreading  a  false  rumour  of  the  death  of  Napoleon  Buona- 
parte, they  were  indicted  and  convicted  of  a  conspiracy,  for  their 
common  purpose  was  illegal.  (B.v.  De  Berenger,  3  M.  &  S.  67.) 
But  this  is  scarcely  an  authority  for  holding  that  the  merely  spread- 
ing a  false  rumour  is  in  itself  indictable.  The  statutes  of  Scandalum 
Magnatum,  3  Edw.  I.  c.  34  ;  Rich.  II.  st.  1,  c.  5  ;  and  12  Rich.  II. 
c.  11,  are  set  out  ante,  pp.  13.4-6  ;  they  are,  however,  practically 
obsolete. 

In  all  the  above  cases  of  misdemeanour  at  common  law,  the  de- 
fendant may  be  fined  or  imprisoned,  or  both  ;    but  he  cannot   be 

(394) 


CRIMINAL    INFORMATION.  323 

sentenced  to  hard  labour.  He  may  also  be  required  to  find  sureties 
to  keep  the  peace  and  to  be  of  good  behaviour  for  any  length  of 
time.  A  married  woman  could  not,  before  theMarried  Women's 
Property  Act,  be  [*426]  lined  ;  but  she  could  be  required  to 
find  sureties,  though  she  could  not  enter  into  recognizances 
herself. 

None  of  the  above  offences  can  be  tried  at  quarter  sessions,  except 
an  indictment  for  obscene  words  ;  post,  p.  471. 

Certain  statutes  have  been  passed  in  aid  of  the  common  law  : — 
By  the  6  &  7  Vict.  c.  90,  s.  3,  it  is  a  misdemeanour  to  publish,  or 
threaten  to  publish,  any  libel  upon  any  oilier  person,  or  to  threaten 
to  publish,  or  propose  to  abstain  from  publishing,  or  to  offer  to  pre- 
vent the  publishing  of,  any  matter  or  thing  touching  another,  with 
intent  to  extort  money  or  gain,  or  to  procure  for  any  one  any  ap- 
pointment or  office  of' profit.  The  offender  may  be  sentenced  to  im- 
prisonment for  any  term  not  exceeding  three  years,  either  with  or 
without  hard  labour. 

Except  under  the  first  clause  of  the  section,  the  matter  or  thing 
threatened  to  be  published  need  not  be  libellous  ;  the  intent  to  extort 
money  is  the  gist  of  the  offence  ;  and  a  demand  of  money  which 
defendant  honestly  believes  to  be  due  and  owing  to  him  is  no  evi- 
dence of  such  an  intent,  (R.  v.  Coghlan,  4  F.  &  F.  316.)  The 
commencement  of  legal  proceedings  is  not  "a  publishing  of  any 
matter  or  thing  "  within  the  meaning  of  the  section.  (R.  v.  Yates 
and  another,  12  Cox,  C.  C.  441.)  A  corporation  is  not  a  "person  " 
within  the  meaning  of  this  section.  (R.  v.  McLaughlin,  H  J.  P. 
291.) 

By  the  6  &  7  Vict.  c.  96,  s.  4,  it  is  a  misdemeanour  to  maliciously 
publish  any  defamatory  libel  knowing  the  same  to  be  false  ;  the 
punishment  may  be  fine  or  imprisonment,  or  both,  such  imprison- 
ment not  to  exceed  two  years. 

By  the  6  &  7  Vict.  c.  96,  s.  5,  it  is  a  misdemeanour  to  maliciously 
publish  any  defamatory  libel  ;  the  punishment  may  be  fine  or 
imprisonment,  or  both,  such  imprisonment  not  to  exceed  one  year. 

See  the  whole  statute  in  Appendix  D.,  post,  pp.  716-9. 

[*427]  By  the  24  &  25  Vict.  c.  96,  ss.  46,  47, it  is  a  felony  to  accuse 
or  threaten  to  accuse  another  of  any  infamous  crime,  whether  by  let- 
ter or  otherwise,  with  intent  to  extort  money  or  gain.  The  offender 
may  for  each  letter  he  has  sent  be  sentenced  to  penal  servitude  for 
life,  or  for  any  term  not  less  than  three  years  [wow tfive  years,  27 
&  28  Vict.  c.  427,  s.  428],  or  to  imprisonment,  with  or  without 
hard  labour,  for  any  term  not  exceeding  two  years.  (See  R.  v.  Red- 
man, h.  R.  1  C  C.'R.  12  ;  39  L.  J.  M.C.  89  ;  R.  v.  Ward,  10  Cox, 
C.  C.  42  ;  and  before  this  Act,  72  v.  Sotdherton,  6  East,  126. 

M  Criminal  Informations. 

In  some  cases  of  indictable  words,  the  prosecutor  may  also,  if  he 
prefer,  proceed  by  way  of  criminal  information. 

(395) 


324  CRIMINAL    LAW. 

Criminal  informations  are  of  two  kinds  : 

(i)  Those  filed  by  the  Attorney-General  himself,  usually  called 

ex  officio  informations, 
(ii)  Those  filed   by  the  Queen's  coroner  and  attorney  by  the 

direction   of  the  Queen's  Bench  Division  at  the  instance 

of  some  private  individual, 
(i)  The  first  class  is,  as  a  rule,  confined  to  libels  of  so  dangerous  a 
nature  as  to  call  for  immediate  suppression  by  the  officers  of  the 
State  ;  especially  blasphemous,  obscene,  or  seditious  libels,  or  such 
as  are' likely  to  cause  immediate  outrage  and  public  riot  and  disturb- 
ance. In  these  cases,  therefore,  the  Attorney-General  himself  takes 
the  initiative.  There  has  I  believe  been  no  ex  officio  information 
filed  in  England  since  1830. 

(ii)  In  the  second  class  of  informations  the  relator  is  generally 
some  private  individual  who  has  been  defamed.  But  still  the  words 
complained  of  must  be  such  as  call  for  the  prompt  and  immediate 
interference  of  the  Court.  There  must  be  some  evidence  that  the 
ordinary  remedies  by  action  or  indictment  are  insufficient  in  the  par- 
ticular [*428]  case.  "  The  Court,  moreover,  always  looks  at  all  the 
circumstances  which  occasioned  or  provoked  the  libel.  Thus  no  in- 
formation will  be  granted  if  the  prosecutor  relator  has  himself 
libelled  the  defendant  (R.  v.  Nottingham  Journal,  9  Dowl.  1042), 
or  in  any  way  invited  the  publication  of  the  libel  of  which  he  now 
complains  {R.  v.  Larrieu,  7  A.  &  E.  277),  or  had  an  opportunity  of 
expressing  his  disapproval  of  its  terms,  of  which  he  did  not  avail 
himself  (R.  v.  Lawson,  1  R.  B.  486  ;  1  Gale  &  D.  15),  or  has  de- 
manded and  received  explanations  from  the  defendant  (Ex  parte 
Doveton,  7  Cox,  C.  C.  16  ;  26  L.  T.  (Old  S.)  73  ;  19  J.  P.  741  ;  Ex 
parte  Haviland,  41  J.  P.  789),  or  has  himself  written  to  the  papers 
or  published  a  pamphlet  provoking  the  libel  (R.  v  Hall,  1  Cox,  C. 
C.  344),  or  replying  thereto  (Ex  jKtrte  Rowe,  20  L.  T.  (Old  S.)  115  ; 
17  J.  P.  25).  And  generally,  if  the  prosecutor  has  been  guilty  of 
any  misconduct  in  relation  to  the  matter,  a  rule  will  be  refused,  ex- 
cept in  cases  where  the  public  have  a  direct  and  independent  interest 
in  the  prompt  suppression  of  such  libels.  (R.  v.  Casey,  13  Cox,  C. 
C.  310  ;  following  R.  v.  JVorris,  2  Lord  Kenyon,  300.) 

It  is  not  necessary  that  the  libel  should  charge  a  criminal  offence 
to  induce  the  Court  to  grant  a  criminal  information.  It  is  enough 
that  the  libel,  though  on  a  private  individual,  is  one  requiring 
prompt  suppression.  The  rank  and  dignity  of  the  person  libelled 
was  formerly  taken  into  consideration  ;  and  informations  have  been 
granted  for  imputing  that  the  children  of  a  marquis  were  bastards 
(R.  v.  Gregory,  8  A.  &  E.  907  ;  1  P.  &  D.  110)  ;  that  a  peer  had 
married  an  actress  (72.  v  Kinnersley,  1  Wm.  Bl.  294)  ;  that  a  naval 
captain  was  a  coward,  a  bishop  a  bankrupt,  a  peer  a  perjurer,  &c, 
&c.  But  now  it  is  settled  that  rank  confers  no  superior  claim  to  the 
summary  interference  of  the  Court.  A  peer  is  no  more  entitled  to  a 
criminal  information  when  his  private  character  is  attacked  than  the 
humblest  servant  of  the  Queen.  (Ref/.  pros.  Vailombrosa  v.  La- 
bouchere,  12  Q.  B.  D.  320  ;  53  L.  J.  Q.  B.  362  ;  32  W.  R.  861  ;  50  L. 
T.  177  ;  15  Cox,  C.   C.  415  ;    48  J.  P.  165.)  [*429]     A  grocer  ob- 

(396) 


CRIMINAL    INFORMATIONS.  325 

tained  a  criminal  information  for  a  libel  in  B.  v.  Benfidd,  2  Burr. 
980;  a  housekeeper  in  B.  v.  Tanfield,  42  J.  P.  4l':;. 

But  latterly  the  Court  has  been  much  more  chary  of  grant  in- 
criminal  informations  ;  and  in  future  they  will,  ;is  ;i  rule,  be  only 
granted  where  the  applicant  holds  some  public  office  or  position  in 
England  {Reg.  Labouchere,  ubi  supra)  ;  or  where  the  libel  tends  to 
obstruct  the  course  of  justice,  or  to  prejudice  the  fair  trial  of  any 
accused  person.  {11.  v.  Watson  and  others,  2  T.  R.  199  ;  poat,  p. 
493  ;  B.  v.  Jolliffe,  4T.  R.  285  ;  B.  v.  White,  1  Camp.  359,  n.  ;  Ex 
parte  Duke  of  Marlborough,  5  Q.  B.  955  ;  13  L.  J.  M.  C.  105  ;  1 
Dav.  &  Mer.  720  ;  B.  \.Gray,  10  Cox   C.  C.  184.) 

So,  if  there  be  general  reflections  on  a  body  or  class,  no  particular 
individual  being  specially  attacked  ;  still  if  the  words  are  likely  to 
cause  outrage  and  violence,  the  Court  will  grant  an  information  : 
as  where  the  libel  was  on  the  Jews,  and  certain  Jews  in  consequence 
had  been  ill-used  by  the  mob  {Anon.,  2  Barnard.  138  ;  B.  v.  Osborn, 
ib.  166,  ante,  p.  424  ;  so  where  the  general  body  of  clergymen  in  a 
particular  diocese  were  libelled  {li.  v.  Williams,  5  B.  &  Aid.  595)  ; 
or  a  public  body,  such  as  the  directors  of  the  East  India  Company. 
{B  v.  Jenour,  7  Mod.  400.) 

But  no  information  will  be  granted  for  a  libel  contained  in  a 
private  letter  never  made  public  {Ex  parte  Dale,  2  C.  L.  R.  870)  ; 
nor  for  any  matter  of  mere  trade  dispute,  even  though  fraud  be 
imputed  ;  nor  in  any  case  where  no  malicious  intention  appears  {Ex 
parte  Doveton,  7  Cox,  C.  C.  16  ;  19  J.  P.  741 .  ;  26  L.  T.  (Old  8.) 
73)  ;  nor  where  the  remedy  by  action  or  indictment  is  sufficient. 
{Beg.  v.  Mead,  4  Jur.  1014  ;  Be  "  Evening  J^eics,"  3  Times  L.  R. 
255.) 

A  fortiori,  no  information  will  be  granted  where  the  words  are 
privileged  by  reason  of  the  occasion  on  which  they  were  employed 
{B.  v.  Bailie  (1790),  Holt,  K  P.  312,  n.  ;  Ex  Parte  Hoare,  53  L. 
T.  83)  ;  or  where  they  appear  to  be  true.  {B.  v.  Draper,  3  Smith, 
390.) 

In  every  case  the  application  for  a  criminal  information  [*430j 
must  be  made  promptly  :  any  delay  in  making  the  application  after 
knowledge  of  the  libel  has  reached  the  prosecutor  will  be  ground 
for  refusing  an  information,  unless  such  delay  can  be  satisfactorily 
explained.  The  prosecutor,  too,  must  come  to  the  Court  in  the 
first  instance,  and  must  not  have  attempted  to  obtain  redress  in 
other  ways  before  applying  for  a  criminal  information. 

Illustrations. 

An  information  was  refused  where  the  alleged  libel  was  proved  to  he  a  true 
copy  of  a  report  of  a  Committee  of  the  House  of  Commons,  though  it  did  reflect 
on  the  individual  prosecutor,  and  though  its  publication  was  not  authorized  by 
the  House. 

11.  v.  Wright,  (1799).  8  T.  R.  293. 

A  French  gentleman,  D'Eon  de  Beaumont,  published  a  libel  on  the  Count  de 
Guerehy.  then  French  Ambassador  in  England.  The  libel  chiefly  referred  to 
private  "disputes  between  D'Eon  and  the  Count,  alleging  that  the  Count  had 
supplanted  D'Eon  at  the  Court  of  Versailles  by  trickery  ;  but  it  also  reflected 

(397) 


326  CRIMINAL    LAW. 

On  the  public  conduct  of  the  ambassador,  and  insinuated  that  he  was  not  fit  for 
his  post.     An  information  was  filed  and  D'Eon  convicted.     (Lord  Mansfield.) 
B    v.  D'Eon  (17(14),  3  Burr.  1514  ;  1  W.  Bl.  501  ;  Dig.  L.  L.  88. 
And  see  It.  v.  Peltier  (1803),  28  Howell's  St.  Tr.  617  ;  ante,  p.  409. 
Lord  George  Gordon  was  tried  in  1787  and  convicted  upon  an  information 
charging  him  with  libelling  Marie  Antoinette,  Queen  of  France,  and  "hertool" 
the  French  Ambassador  in  London.     He  was  fined  £500  and  sentenced  to  two 
years'  imprisonment,  and  at  the  expiration  of  that  time  to  find   sureties  for  his 
iiood  behaviour.     This  he  could  not  do,  so  he  remained  in  prison  till  be  died  on 
November  1st,  1798.  (Ashurst,  J.) 

It  v.  Lord  George  Gordon,  22  Howell's  St.  Tr.  177. 
The  Courier  published  the  .following  passage  : — "  The  Emperor  of  Russia  is 
rendering  himself  obnoxious  to  his  subjects  by  various  acts  of  tyranny,  and 
ridiculous  in  the  eyes  of  Europe  by  his  inconsistency.  He  has  now  passed  an 
edict  prohibiting  the  exportation  of  timber,  deals,  and  other  naval  stores.  In 
consequence  of  this  ill-timed  law,  upwards  of  1 00  sail  of  vessels  are  likely  to 
return  to  this  country  without  freights."  This  was  deemed  a  libel  upon  the 
Emperor  Paul  I.  An  information  was  granted,  and  the  proprietor  of  the 
Courier  was  find  £100,  sentenced  to  six  months'  imprisonment,  and  to  find 
sureties  for  good  behaviour  for  five  years  from  the  expiration  of  that  term. 
The  printer  and  publisher  were  also  sentenced  to  one  month's  imprisonment. 
(Lord  Kenyon,  C.  J.) 

R.  v.  Vint  (1799),  27  Howell's  St.  Tr.  627. 
The  Prince  Regent  obtained  an  information  against  the  editor  and  printer  of 
the  Examiner. 

It.  v.  Leigh  and  John  Hunt,  3  Chit.  Cr.  L.  881. 
Certain  justices  of  Leicestershire  obtained  a  rule  for  a  criminal  information 
[*431]  for  a.  libel  imputing  that,  in  convicting  a  particular  prisoner,  they  had 
deliberately  acted  from  motives  of  political  partisanship. 
Ex  parte  Hoskyns,  33  J.  P.  68. 
The  mayor  of  a  borough  is  entitled  to  a  criminal  information  for  a  libel  im- 
puting to  him  gross  misconduct  in  bis  office. 

It  v.  Brigstock,  Cole  on  Cr.  Inf  p.  23  ;  6  C   &  P.  184. 
Ex  parte  the  Mayor  of  Great  Yarmouth,  1  Cox,  C.  C.  122. 
Reg.  v.  John  Rea,  17  Ir.  C.  L.  R.  584  ;  9  Cox,  C.  C.  401. 
And  similarly  a  town  clerk. 

R.  v.  Hatfield,  4  C.  &P.  244. 
So  is  a  bishop,    "dishonourable  and  degrading  conduct  "  being  imputed  to 
him  qua  bishop. 

It  v.    Clouter,  Cole  on  Cr.  Inf.  p   22. 
A  chief  constable  obtained  a  rule  nisi  for  a  libel  imputing  misconduct  in  his 
office. 

Ex  parte  Parry,  41  J.  P.  85. 
A  Queen's  counsel  obtained  a  criminal  information  for  libellous  verses  and  for 
a  caricature  imputing  to  him  professional  misconduct  in  the  conduct  of  a  case. 
Sir  W.   Garrow's  Cam,  3  Chit,  Cr.  Law,  884. 
But  it  was  held  that  the  musical   critic  of  the  Times  was  not  entitled  to  a 
criminal  information   for  a  libel  charging  him  with  corruption,  on  the  grouud 
that  his  was  not  a  public  office. 

Ex  part:  Damson,  42  J.  P.  727  ;  cited  12  Q.  B.  D,  328. 
Nor  a  foreign  duke,  whose  deceased  father  was  libelled. 

It.   pros.  Vallombrosa  v.  Labouchere,  12  Q.  B.  D.  320  ;  53  L.  J.  Q.  B. 
362  ;  32  W.  R.  861  ;  50  L.  T.  177  ;  15  Co.  C.  C.  415;  48  J.  P.  165. 
The  solicitors  to  a  railway  company  were  refused  a  rule  for  a  criminal  informa- 
tion for  a  libel  on  them  by  the  directors,  imputing  extortion  and  fraud.     They 
were  left  to  bring  an  action. 

Ex  parte  Baxter,  28  J.  P.  326. 
A  county  court  judge  illegally  refused  to  hear  a  barrister  who  appeared  be- 
fore him.  The  barrister  memorialised  the  Lord  Chancellor.  Obtaining  no 
redress,  he  applied  to  the  Court  of  Queen's  Bench  for  a  criminal  information. 
This  would  have  been  granted  him,  had  he  not  previously  applied  to  the  Lord 
Chancellor. 

R  v.  Marshall,  4  E.  &  B.  475. 
(398) 


PUBLICATION. 


327 


alt 


An  Irish  Q.  C,  in  addressing  the  jury  ;is  counsel  in  a  cause,  made  a  fierce 
..jack  on  the  plaintiff,  who  was  an  attorney.  Thisattack  waspertinenl  to  the 
issue  and  not  malicious;  at  the  same  time,  the  observations  were  unusually 
harsh  and  irritating.  The  plaintiff  won  the  action,  and  then  wrote  to  the  <2-  ( '  . 
calling  on  him  to  retract  the  charges  he  had  made.  The  <-2-  C.  refused  ;  there 
upon  plaintiff  wrote  the  <2.  ('.  a  letter,  couched  in  the  most  offensive  language, 
and  obviously  intended  to  provoke  a  duel.  The  Court  made  the  rule  lor  a 
criminal  information  absolute;  but  ordered  that  the  information  should  uol 
issue  without  further  order.  . 

Reg.fproa.  Armstrong,  Q-  C.  v.  Kiernnn,  7 Cox,  C.C6;  5  Ir-  C.  L. 

A.U71. 
Reg.  pros.  Butt,  Q.  C.  v.  Jackson,  10  Ir.  L.  R.  120. 

[*432]  Publication. 

The  prosecutor  must  prove  that  the  defendant  published  the 
defamatory  words.  In  civil  cases  it  is  necessary  to  show  a  publica- 
tion to  some  third  person  other  than  the  person  defamed.  In  crim- 
inal cases  this  is  not  absolutely  necessary;  it  is  sufficient  to  prove  a 
publication  to  the  prosecutor  himself,  provided  the  obvious  tendency 
of  the  words  be  to  provoke  the  prosecutor  and  excite  him  to  break 
the  peace.  {Hicks'  case,  Hob.  215;  Poph.  139  ;  cited  6  East,  470  ; 
ChiUerbuck  v.  Chafers,  1  Stark.  471;  B.  v.  Wegener,  2  Stark,  245  ; 
Phillip  v.  Jansen,2  Esp.  624  ;  B.  v.  Hornbrool;  Selwyn's  Nisi 
Prius.  12th  ed.  at  p.  1065  ;  13th  ed.  at  p.  1000  ;  B.  v.  Brooke,  7 
Cox,  C.  C.  251.     See  post,  p.  594.) 

In  all  other  respects  the  law  as  to  publication  is  practically  iden- 
tical in  civil  and  criminal  cases.     (See  c.  VI.,  ante,  pp.  151 — 169.) 

Thus,  both  author,  printer  and  publisher  are  each  and  all  liable 
to  be  prosecuted  for  a  libel  contained  in  any  book  or  newspaper.  In 
the  latter  case  the  proprietor  of  the  newspaper  will  also  be  liable. 
Every  fresh  publication  of  a  libel  is  a  fresh  crime.  The  sale  of 
every  separate  copy  of  a  libel  is  a  distinct  offence.     (B.  v.    Carlile, 

1  Chitty,  453.)  "'Not  only  the  party  who  originally  prints,  but 
every  party  who  utters,  who  sells,  who  gives,  or  who  lends  a  copy 
of  an  offensive  publication  will  be  liable  to  be  prosecuted  as  a  pub- 
lisher." (Per  Bayley,  J.,  in  B.  v.  Carlile,  3  B.  &  Aid.  169.)  "  The 
mere  delivery  of  a  libel  to  a  third  person  by  one  conscious  of  its 
contents  amounts  to  a  publication,  and  is  an  indictable  offence." 
(Per  Wood  B.,  in  Moloney  v.  Hartley,  3  Camp.  213.) 

In  the  last  extract  the  learned  Baron  is  careful  to  insert  the  words 
"by  one  conscious  of  its  contents."  For  although  any  delivery  to  a 
third  person  will  amount  to  a  prima  facie  publication,  it  is  open  to  the 
defendant  to  prove,  both  in  civil  and  criminal  cases,  that  he  deliv- 
ered [*433]  the  libel  without  any  knowledge  of  the  libellous  nature 
of  its  contents  :  e.g.,  where  a  postman  or  messenger  carries  a  sealed 
letter  (per  Lord  Kenyon,  C.  J.,  in  B.  v.  Topham,  4  T.  R.  129),  or  a 
parcel  in  which  libellous  handbills  were  wrapped  up  {Bay  v.  Bream, 

2  Moo.  &  Rob.  55),  or  where  the  defendant  cannot  read  (per  Lord 
Kenyon,  in  B.  v.  Holt,  5  T.  R.  444).  And  see  Emmens  v.  Pottle 
(C.  A.),  16  Q.  B.  D.  354  ;  55  L.  J.  Q.  B.  51  ;  34  W.  R.  116  ;  53  L. 
T.  808  ;  50  J.  P.  228.  Even  if  the  defendant  had  read  the  libel, 
yet  if  the  words  were  innocent  on  the  face  of  them,  and  only  derived 

(35)9) 


328  CRIMINAL    LAW. 

a  defamatory  meaning  from  certain  extrinsic  facts  and  circumstances 
wholly  unknown  to  him,  then  he  would  still  be  unconscious  that  what 
he  published  was  a  libel,  and  such  a  publication  would  be  no  crime  ; 
e.g.,  where  the  libel  was  contained  in  an  allegory  ora  riddle,  to  which 
the  defendant  had  no  clue.  Again,  where  the  defendant  copied  a 
libel  knowing  it  to  be  a  libel,  and  afterwards  inadvertently  delivered 
such  copy  to  a  third  person  in  mistake  for  some  other  paper,  it  is 
submitted  that  he  would  not  be  held  criminally  liable  for  such  an 
accident,  though  he  would  be  held  liable  in  a  civil  case.  (See  the 
dicta  of  Lord  Kenyon  in  P.  v.  Topham,  4  T.  R.  139  ;  and  in  P.  v. 
Lord  Abing don,  1  Esp.  228  ;  and  the  ruling  of  Abbott,  C.J  in  R.  v. 
Harvey,  2  B.  &  C.  257.)  A  person  who  took  down  in  writing 
seditious  words  dictated  by  the  composer  was  held  guilty  of  a  mis- 
demeanour in  Ii.  v.  Paine,  Carth.  405,  although  apparently  no  subse- 
quent publication  by  him  was  proved  ;  but  if  so,  this  case  is  bad  law. 
(See  Lamb's  Case,  9  Rep.  60,  cited  ante,  p.  157.) 

A  master  will  be  liable  criminally  for  the  acts  of  his  servant  done 
in  the  ordinary  course  of  his  employment  in  pursuance  of  his  mas- 
ter's orders,  general  or  express.  The  criminal  liability  of  a  defend- 
ant for  such  constructive  publication  is  now  defined  by  the  7th  sec- 
tion of  Lord  Campbell's  Act  (6  &  7  Vict.  c.  96)  which,  however, 
rather  declared  than  altered  the  existing  law  : — "  Whensoever,  upon 
the  trial  of  any  indictment  or  information  for  the  publication  of  a 
libel,  under  the  plea,  of  not  guilty,  evidence  shall  have  been  given 
which  shall  establish  a  presumptive  case  of  publication  against  the 
defendant  by  the  act  of  any  other  person  by  his  authority,  it  shall 
be  competent  to  such  defendant  to  prove  that  such  publication  was 
made  without  [*434]  his  authority,  consent  or  knowledge,  and  that 
the  said  publication  did  not  arise  from  want  of  due  care  or  caution 
on  his  part." 

The  section  only  says  that  evidence  may  be  given  of  such  facts  ; 
but  it  has  always  been  construed  to  mean  that  such  facts,  if  proved, 
shall  be  an  answer  to  the  indictment  ;  for  such  evidence  was  always 
admissible  at  common  law  in  mitigation  of  punishment  (if  not  in 
defence).  The  word  "  authority,"  in  the  above  section,  means  some- 
thing more  than  the  general  authority  given  by  the  proprietor  of  a 
newspaper  to  the  editor  to  insert  in  the  paper  whatever  he  thinks  fit. 
(R.  v.  Holbrook  and  others,  3  Q.  B.  D.  60  ;  47  L.  J.  Q.  B.  35  ;  26 
W.  R.  144  ;  37  L.  T.  530  ;  4  Q.  B.  D.  42  ;  48  L.  J.  Q.  B.  113  ;  27 
W.  R.  313  ;  39  L.  T.  536  ;  ante,  p.  415.  And  see  Ex  parte  Parry, 
41  J.  P.  85.) 

The  section  applies  to  all  cases  of  criminal  libel,  blasphemous, 
seditious  and  otherwise.  (P.  v.  Bradlaugh  and  others,  15  Cox,  C. 
C.  218.) 

Illustrations. 

Merely  to  be  in  possession  of  a  copy  of  a  libel  is  no  crime,  unless  some  publi- 
cation thereof  ensue. 

R.  v.  Beere,  Carth.  409  ;  12  Mod.  219  ;  Holt,  422  ;  Salk.  417  ;  1  Lord 

Raym.  414. 
John  Lamb's  Case,  9  Rep.  60,  ante,  p.  157. 

(400) 


PUBLICATION.  329 

Overruling  R.  v.  Algernon  Sidney,  9  Howell's  St.  Tr.  817,  867  ;  3 
Hargrave's  St.  Tr!  807  ;  4  St.  tr.  197. 
As  soon  as  the  manuscript  of  a  libel  1ms  passed  oul  of  the  defendant's  posses 

sion  and  control,  it  is  defined  to   be  published,  so  far  as  the  defendant  is  con- 
cerned. 

Per  Holroyd,  J.,  in  /,'.  v.  Burdett,  I  B.  &  Aid.  143. 
A  libel  was  printed  and  published  ;  the  printer  produced  the  manuscript  from 
which  he  had  printed  it,  and  this  manuscript  was  proved  to  be  in  the  handwrit- 
ing of  the  prisoner  ;  there  was  no  evidence  to  show  that  he  authorized  or  directed 
the  printing  or  publishing.    This  is  evidence  of  publication  sufficient  to  go  to  the 
jury,  though  the  prisoner  may  give  evidence  to  rebut  it. 
R.  v.  Lomtt,  9C.&P.  462. 
Cooper  told  the  editor  of  a  newspaper  several  good  stories  against  the  Rev,  J. 
K.,  and  asked  him  to  "  show  Mr.  K.  up  ;  "  subsequently  the  editor  published 
the  substance  of  them  in  the  newspaper  ;  this  was  held  a  publication  by  Cooper, 
although  the  editor  knew  of  the  facts  from  other  quarters  as  well. 
R.  v.  Cooper,  15  L.  J.  Q.  B.  206 ;  8  Q.  B.  533. 
[*435]  The  defendant   was  the  'proprietor  of   The  Times,  but  resided  in  the 
country   leaving  the  management  of  the  paper  entirely   to  his  son,  with  whom 
he  never  interfered.     A  libel  on  the  late  Lord  Cowper  having  appeared  therein, 
the  defendant  was  held  criminally  liable,  and  convicted. 
R.  v.  Walter,  3  Esp.  21 

And  see  R.  v.  Cutch,  Fisher,  and  Alexander,  Mo.  &  Mai.  433. 
A  rule  was  granted  calling  on  Wiatt  to  show  cause  why  he  should  not  be 
attached  for  selling  a  book  containing  a  libel  on  the  Court   of  King's  Bench. 
The  book  was  in  Latin.     On  his  filing  an  affidavit  that  he  did  not  understand 
Latin,  and  giving  up  the  name  of  the  printer  from  whom  he  obtained  it  and  the 
name  of  the  author,  the  rule  was  discharged. 
R.  v.  Wiatt  (1722),  8  Mod.  123. 
The  defendant  was  a  bookseller,  who  published  a  seditious  libel  written  by 
the  Rev.  Gilbert  Wakefield  ;    he  was  convicted,  but  filed  an  affidavit  in  mitiga- 
tion of  punishment  that  he  had  no  knowledge  whatever  of  the  nature  of  the 
book  or  its  contents  ;    he  was  accordingly  discharged  on  payment  of  a  fine  of 
thirty  marks.     The  Rev.  Gilbert  Wakefield  was  sentenced  "to  two  years'  im- 
prisonment. 

R.  v.  OutheU  (1799),  27  Howell's  St.  Tr.  642. 
There  appeared  in  MisVs   Weekly  Journal  an  account  professedly  of  certain 
intrigues,  &c,  at  the  Persian  Court:    but  any  reader  of  ordinary  intelligence 
could  see  that   it  was  the  English  Court  that   the  author  really  meant,  that 
the  Sultan  "  Esreff "  was  intended  for  George  II.,  his  father  the  late  Sultan 
"Merewits"  for  George  I.,  "  Sophi  "  for  the   Pretender,  &c.  &c.     The  two 
compositors  who  set  it  up  divided  the  work  between  them,  one  taking  one 
column,  the  other  the  next.     It  was  almost  impossible  that  thus  they  could  gain 
any  notion  of  the  general  sense  of  what  they  were  printing.     Yet  one  of  them 
was  convicted  of  publishing  a  seditious  libel  ;   and  so  was  the  servant  whose 
business  "  was  only  to  clap  down  the  press." 
R.  v.  Knell  (1728),  1  Barnard.  305. 
R.  v.  Goerk,  ib.  304. 
In  Massachusetts  it  has  been  held  that  the  publisher  of  a  newspaper  is  not 
liable  for  publishing  an  article  wdiich  he  reasonably  and  bond  fide  believes  to  be 
a  fancy  sketch  or  a  fictitious    narrative,  in  no  way  applicable    to  any  living 
person  ;  although  the  writer  intended  it  to  be  libellous  of  the  plaintiff.    [Probably 
this  would  be  a  defence  in  England  in  a  criminal  case,  if  not  in  a  civil  action. 
See  Precedent  No.  33,  p.  638.] 

Smith  v.  Ashley  (1846),  52  Mass.  (11  Met.)  367. 
Dexter  v.  Spear,  4  Mason,  115. 
See  Chubb  v.  Flannagan,  6  C.  &  P.  431. 
Rev.  Samuel  Paine  sent  his  servant  to  his  study  for  a  certain  paper  which  he 
wished  to  show  Brereton  ;    the  servant  by  mistake  brought  a  libellous  epitaph 
on  Queen  Mary  which  Paine  inadvertently  handed  to  Brereton.     This  would 
probably  be  deemed  a  sufficient  publication  in  a  civil  case  (note  to  Mayne  v. 
Fletcher,  4  Man.  &  Ry.  312),  but  was  held  insufficient  in  a  criminal  case. 

(401) 


330  CRIMINAL    LAW. 

R.  v.  Paine  (1695),  5  Mod.  107. 

Bee  the  remarks  of  Lord  Kenyon  in  R.  v.  Lord  Abingdon,  1  Esp.  228. 
A  libel  appeared  in  the  Man  oftlie  'World  of  May  11th.  On  May  25th  the 
defendant  was  appointed  publisher  of  the  paper  and. the  back-stock  was  sent  to 
[*436]  his  office.  On  December  13th,  the  relator's  agent  applied  at  the  defendant's 
office  for  a  copy  of  the  number  of  May  11th,  and  the  defendant  told  his  assistant 
to  look  it  up  and  deiiver  it,  winch  was  done.  The  defendant  swore  thai  he  had 
not  examined  the  back  numbers  at  all  and  knew  nothing  of  the  libel.  The 
Lord  Chief  Justice  intimated  that  in  those  circumstances  no  jury  would  ever 
find  the  defendant  guilty  of  criminally  publishing  the  libel. 

R.  v.  Barnard,  Ex  parte  Lord  Monoid  Oower,  43  J.  P.  127. 
The  defendant  and  Mrs.  Besant  carried  on  business  as  publishers  at  22,  Stone- 
cutter Street,  the  defendant  being  rated  as  the  occupier  of  those  premises. 
Ramsey  was  their  manager.  They  at  first  published  two  papers,  the  National 
Reformer  and  the  Freethinker  ;  but  in  1881  they  arranged  with  Ramsey  that,  in 
addition  to  managing  their  business,  he  might  also  carry  on  a  publishing  busi- 
ness of  his  own  on  their  premises,  and  Ramsey's  salary  was  reduced  in  conse- 
quence of  this  arrangement.  In  November,  1881,  the  defendant  was  registered 
as  proprietor  of  the  National  Reformer  and  Ramsey  as  proprietor  of  the  Free- 
thinker. In  1882  copies  of  the  Freethinker,  containing  blasphemous  libels, 
were  purchased  at  22,  Stonecutter  Street  from  a  shopman  in  the  employ  of  the 
defendant  and  Mrs.  Besant.  The  defendant  knew  that  the  Freethinker  was 
still  being  published  and  sold  on  his  premises,  but  did  not  know  anything  as  to 
the  contents  of  the  numbers  in  question.  Held,  by  Lord  Coleridge,  C.  J.,  that 
the  defendant  was  prima  facie  liable,  but  that  on  the  above  facts  the  jury  might 
acquit  him  under  sect.  7  of  Lord  Campbell's  Act.     Verdict,  Not  guilty. 

R.  v.  Bradlaugh  and  others,  15  Cox,  C.  C.  217. 

And  see  R.  v.  Ramsey  and  Foote,  15  Cox,  C.  C.  231  ;  48  L.  T.  734  ;  1 

'  C.  &  E.  132. 

Privilege. 

A  defendant  on  the  trial  of  any  information  or  indictment  may 
give  evidence  to  show  that  the  alleged  libel  was  privileged  by  reason 
of  the  occasion  ;  and,  unless  such  privilege  be  absolute,  the  prose- 
cutor may  rebut  this  defence  by  evidence  of  malice,  precisely  as  in 
civil  cases  ;  ante,  cc.  VIII.  and  IX. 

Except  in  such  cases  of  privilege  it  is  quite  unnecessary  to  prove 
malice  in  any  criminal  proceeding  for  a  defamatory  libel  ;  it  is 
enough  that  the  defendant  published  that  which  the  jury  have 
found  to  be  a  libel.  'After  conviction,  however,  the  defendant  is 
allowed  to  file  affidavits  in  mitigation  of  punishment,  showing  that 
he  honestly  believed  in  the  truth  of  what  he  wrote,  and  published 
it  without  malice.     (R.  v.  Sir  F.  Burdelt,  3  B.  &  Aid.  95.) 

The  law  is  otherwise  in  Scotland  ;  there  malice  must  be  [*43  7] 
proved  in  all  criminal  proceedings,  though  it  never  need  be  in  civil. 
(1  Hume,  342  ;  Borthwick,  190,^195.) 

Justification. 

But  it  is  in  the  matter  of  justification  that  the  main  differ- 
ence lies  between  civil  and  criminal  proceedings.  In  a  civil  trial, 
as  we  have  seen,  ante,  p.  170,  the  truth  of  the  matters  charged  in  a 
libel  is  and  always  was  a  perfect  answer  to  the  action  ;  the  plaintiff 
was  never  allowed  to  recover  damages  for  an  injury  done  to  a  repu- 
tation to  which  he  had  no  right.  But  in  all  criminal  proceedings 
the  truth  of  the  libel  by  the   common  law  constituted  no  defence. 

(40') 


JUSTIFICATION.  331 

The  maxim  used  to  be  "  the  greater  the  truth  the  greater  the  libel  ;" 
meaning  that  the  injudicious  publication  of  the  truth  about  A.  would 
be  more  likely  to  provoke  him  to  a  breach  of  the  peace  than 
if  some  falsehood  were  invented  about  him,  which  he  could  easily 
and  completely  refute.  Accordingly,  on  a  criminal  trial,  whether 
of  an  indictment  or  an  information,  no  evidence  could  be  received 
of  the  truth  of  the  matters  charged,  not  even  in  mitigation  of  pun- 
ishment. But  now,  by  the  6th  section  of  Lord  Campbell's  Act  (G 
&  V  Vict.  c.  90),  "On  the  trial  of  any  indictment  or  information 
for  a  defamatory  libel,  the  defendant  having  pleaded  such  plea  as 
hereinafter  mentioned,  the  truth  of  the  matters  charged  may  be 
inquired  into,  but  shall  not  amount  to  a  defence,  unless  it  was  for 
the  public  benefit  that  the  said  matters  charged  should  be  published. 
To  entitle  the  defendant  to  give  evidence  of  the  truth  of  such  mat- 
ters charged  as  a  defence  to  such  indictment  or  information,  it 
shall  be  necessary  for  the  defendant,  in  pleading  to  the  said  indict- 
ment or  information,  to  allege  the  truth  of  said  matters  charged  in 
the  manner  now  required  in  pleading  a  justification  to  an  action 
for  defamation,  and  further  to  allege  that  it  was  for  the  public  bene- 
fit that  the  said  matters  charged  should  [*  438]  be  published,  and 
the  particular  fact  or  facts  by  reason  whereof  it  was  for  the  public 
benefit  that  the  said  matters  charged  should  be  published  ;  to  which 
plea  the  prosecutor  shall  be  at  liberty  to  reply  generally,  denying 
the  whole  thereof.  If  after  such  plea  the  defendant  shall  be  con- 
victed on  such  indictment  or  information,  it  shall  be  competent  to 
the  Court,  in  pronouncing  sentence,  to  consider  whether  the  guilt 
of  the  defendant  is  aggravated  or  mitigated  by  the  said  plea  and  by 
the  evidence  given  to  prove  or  disprove  the  same  :  Provided  always, 
that  the  truth  of  the  matters  charged  in  the  alleged  libel  complained 
of  by  such  indictment  or  information  shall  in  no  case  be  inquired 
into  without  such  plea  of  justification  :  Provided  also,  that,  in  addi- 
tion to  such  plea,  it  shall  be  competent  to  the  said  defendant  to  plead 
a  plea  of  not  guilty  :  Provided  also,  that  nothing  in  this  Act  con- 
tained shall  take  away  or  prejudice  any  defence  under  the  plea  of 
not  guilty  which  it  is  uoav  competent  to  the  defendant  to  make 
under  such  plea  to  any  action  or  indictment,  or  information  for 
defamatory  words  or  libel. 

And  here  note  that  there  is  still  a  most  important  distinction 
between  civil  and  criminal  cases  on  this  point.  The  mere  truth 
is  an  answer  to  a  civil  action,  however  maliciously  and  unneces- 
sarily the  words  were  published.  But  in  a  criminal  case,  the 
defendant  has  to  prove,  not  only  that  his  assertions  are  true,  but  also 
that  it  was  for  the  public  benefit  that  they  should  be  published. 
Moreover,  the  statute  does  not  apply  in  cases  of  blasphemous, 
obscene,  or  seditious  words.  (H.  v.  Duffy,  9  Ir.  L.  R.  329  ;  2  Cox, 
C.  C.  45  ;  Ex  parte  O'Brien,  12  L.  R.  Jr."  29  ;  15  Cox,  C.  C.  180.)  It 
does  not  apply,  by  its  express  terms,  unless  there  be  a  special  plea 
of  justification.  In  short,  the  truth  of  the  matter  complained  of 
"  can  only  become  a  defence  under  the  statute,  and  then  only  when 
the  statutory  conditions  are  complied  with."  Wherever  the  Act 
does  not  apply,  the  law  remains  still  as  it  was  settled  prior  to  that 

(403) 


332  CRIMINAL    LAW. 

Act.  Hence  a  magistrate  at  the  preliminary  investigation  of  a 
charge  of  libel,  whether  under  s.  5  of  the  6  &  7  Vict.  e.  96,  or  at 
common  law,  has  [*  439]  no  power  to  receive  or  perpetuate  any  evi- 
dence of  the  truth  of  the  matters  charged  (li.  v.  Tovmsend,  4  F.  & 
F.  1089;  10  Cox,  C.  C.  356  ;  It.  v.  Sir  Robert  Carden,  5  Q.  B.  D. 
1  ;  49  L.  J.  M.  C.  1  ;  28  W.  R.  133  ;  41  L.  T.  504  ;  14  Cox,  C.  C. 
359),  unless  the  libel  appeared  in  a  newspaper,  as  to  which  see  s.  4 
of  the  Newspaper  Libel  Act,  1881,  ante,  p.  384. 


(404) 


[*«o]  CHAPTER  XVI. 

BLASPHEMOUS  WOEDS. 

It  is  a  misdemeanour,  punishable  by  indictment  and  by  criminal 
information,  to  speak  or  write  and  publish,  any  profane  words  vili- 
fying or  ridiculing  God,  Jesus  Christ,  the  Holy  Ghost,  the  Old  or 
New  Testament,  or  Christianity  in  general,  with  intent  to  shock 
and  insult  believers,  or  to  pervert  or  mislead  the  ignorant  and  un- 
wary. This  is  the  crime  of  blasphemy,  and  on  conviction  thereof 
the  blasphemer  may  be  sentenced  to  fine  and  imprisonment  to  any 
extent,  in  the  discretion  of  the  Court.  Formerly  he  was  frequently 
also  sentenced  to  the  pillory  or  to  banishment.*  He  may  also  be 
required  to  give  security  for  his  good  behaviour  for  any  reasonable 
time  after  he  comes  out  of  prison  ;  and  can  be  detained  in  prison 
till  such  sureties  be  found.  [Thomas  Emlyn,  in  1703,  and  Richard 
Carlile,  in  1820,  were  condemned  to  find  sureties  for  their  good 
behaviour  throughout  the  remainder  of  their  lives.]  Also  under 
the  60  Geo.  III.  &  1  Geo.  IV.  c.  8,  s.  1  the  Court  [*44l]  may,  after 
conviction,  make  an  order  for  the  seizure  of  copies  of  the  blasphe- 
mous libel  in  the  possession  of  the  prisoner,  or  in  the  possession  of 
any  person  to  his  use.  (See  the  Statute  in  Appendix  D.  ijost,  p. 
712.)  The  defendant  cannot  plead  a  justification  :  nor  can  he  be 
permitted  at  the  trial  to  argue  that  his  blasphemous  libel  is  true. 
Per  Abbott,  L.  C.  J.,  in  Cooke  v.  Hughes,  R.  &  M.  115. 

The  intent  to  shock  and  insult  believers,  or  to  pervert  or  mislead 
the  ignorant  and  unwary,  is  an  essential  element  in  the  crime.  Actus 
nonfacit  reum,  nisi  mens  sit  rea.  The  existence  of  such  an  intent 
is  a  question  of  fact  for  the  jury,  and  the  otitis  of  proving  it  lies  on 
the  prosecution.  The  best  evidence  of  such  an  intention  is  usually 
to  be  found  in  the  work  itself.  If  it  is  full  of  scurrilous  and  oppro- 
brious language,  if  sacred  subjects  are  treated  with  offensive  levity, 
if  indiscriminate  abuse  is  employed  instead  of  argument,  then  a 
malicious  design  to  wound  the  religious  feelings  of  others  may  be 
readily  inferred.  If,  however,  the  author  abstains  from  ribaldry 
and   licentious   reproach,    a  similar   design    may    still  perhaps  be 

*  In  Scotland  up  till  the  year  1813  blasphemy  was  in  certain  circumstances  a 
capital  offence.  The  only  person  executed  for  blasphemy  appears  to  have  been 
Thomas  Aikenhead,  a  young  student  just  twenty  years  of  age,  and  the  son  of 
a  surgeon  in  Edinburgh  ;  he  seems  to  have  been  very  harshly,  if  not  illegally, 
treated  ;  no  counsel  appeared  for  him  :  his  crime  consisted  in  loose  talk  about 
Ezra  and  Mahomet  and  in  crude  anticipations  of  Materialism.  He  was  hanged 
on  January  8th,  1697,  buried  beneath  the  gallows,  and  all  his  moveables  for- 
feited to  the  Crown.  (See  Maclaurin's  Crim.  Cases,  12  ;  3  Mer.  382,  n.)  Two 
other  persons  were  prosecuted — Kinninmouth  and  Borthwick — but  neither  was 
convicted  ;  in  the  first  case  the  prosecution  dropped,  while  Borthwick  fled  the 
country.     (Hume  on  Crimes,  II.  518.) 

(405) 


334  BLASPHEMOUS    WORDS. 

inferred  if  it  be  found  that  he  has  deliberately  bad  resort  to  sophis- 
tical arguments,  that  he  has  wilfully  misrepresented  facts  within  his 
knowledge,  or  lias  indulged  in  sneers  and  sarcasms  against  all  that  is 
good  and  noble  ;  for  then  it  is  clear  that  he  does  not  write  from 
conscientious  conviction,  but  desires  to  pervert  and  mislead  the 
ignorant  ;  or  at  all  events  that  he  is  criminally  indifferent  to  the 
distinctions  between  right  and  wrong.  But  where  the  work  is  free 
from  ail  offensive  levity,  abuse  and  sophistry,  and  is  in  fact  the 
honest  and  temperate  expression  of  religious  opinions  conscientiously 
held  and  avowed,  the  author  is  entitled  to  be  acquitted,  for  his 
work  is  not  a  blasphemous  libel. 

"It  is,  indeed,  still  blasphemy,"  says  Mr.  Justice  Erskine  in 
Shore  v.  Wilson,  9  Clark  &  Fin.,  at  pp.  524-5,  "  punishment  at 
common  law,  scoffingly  or  irreverently  to  ridicule  or  impugn  the 
doctrines  of  the  Christian  faith  ;  yet  any  [*442]  man  may,  without 
subjecting  himself  to  any  penal  consequences,  soberly  and  rever- 
ently examine  and  question  the  truth  of  those  doctrines  which  have 
been  assumed  as  essential  to  it."  Mr.  Justice  Coleridge  said,  in  the 
same  case,  9  Clark  &  Fin.,  at  p.  539,  "  I  apprehend  that  there  is 
nothing  unlawful 'at  common  law  in  reverently  denying  doctrines 
parcel  of  Christianity,  however  fundamental.  It  would  be  difficult 
to  draw  a  line  in  such  matters  according  to  perfect  orthodoxy,  or  to 
define  how  far  one  might  depart  from  it  in  believing  or  teaching 
without  offending  the  law.  The  only  safe  and,  as  it  seems  to  me, 
practical  rule,  is  that  which  I  have  pointed  at,  and  which  depends 
on  the  sobriety,  and  reverence,  and  seriousness  with  which  the 
teaching  or  believing,  however  erroneous,  are  maintained." 

And  mere  vehemence  or  even  virulence  of  argument  must  not  be 
taken  as  evidence  of  this  intent  to  injure.  Sarcasm  and  ridicule  are 
fair  weapons,  even  in  heterodox  hands,  so  long  as  they  do  not  degen- 
erate into  profane  scoffing  or  irreverent  levity.  "  If  the  decencies 
of  controversy  are  observed,  even  the  fundamentals  of  religion  may 
be  attacked  without  a  person  being  guilty  of  blasphemous  libel." 
(Per  Lord  Coleridge,  C.  J.,  in  R.  v.  Ramsey  and  Foote,  48  L.  T. 
739  ;  15  Cox,  C.  C.  231  ;  1  C.  &  E.  146  ;  post,  p.  701.) 

It  is  not  blasphemy,  then,  to  seriously  and  reverently  propound 
any  opinions,  however  heretical,  which  are  conscientiously  enter- 
tained by  the  accused.  Honest  error  is  no  crime  in  this  country,  so 
long  as  its  advocacy  be  rational  and  dispassionate,  and  do  not  degen- 
erate into  fanatical  abuse,  or  into  scurrilous  attacks  upon  individ- 
uals. Heresy  and  blasphemy  are  entirely  distinct  and  different 
things.  "The  law  visits  not  the  honest  errors,  but  the  malice  of 
mankind."  ("Starkie  on  Libel,"  2nd  edition,  p.  147.)  "Every 
man  may  fearlessly  advance  any  new  doctrines,  provided  he  does  so 
with  proper  respect  to  the  religion  and  government  of  the  country." 
(Per  Best,  J.,  in  li.  v.  Burdett  (1820),  4  B.  &  Aid.  132.) 

[*443]  Or,  to  quote  the  words  of  Lord  Mansfield  in  the  great 
case  of  Evans  v.  The  Chamberlain  of  London  (1767),  "The 
common  law  of  England,  which  is  only  common  reason  or  usage, 
knows  of  no  prosecution  for  mere  opinions."  (16  Pari.  History 
(1813),  p.  325  ;  2  Burn,  Eccl  Law,  218.). 

(406) 


BLASPHEMY.  335 


Illustrations. 


Taylor  was  convicted  of  uttering  disgusting  and  scurrilous  language  about 
Jesus  Christ  in  the  market-place  at  Guildford  (see  post,  p.  451 ). 

R.  v.  Taylor,  Ventris,  293  ;  3  Keble,  607  ;  Tremayne's  Entries,  226. 
It  is  blasphemy  to  write  and  publish  that  Jesus  Christ   is  an  impostor,  the 
Christian  religion  a  mere  fable,  and  those  who  believe  in  it  infidels  to  God. 
R.  v.  Eaton,  31  Howell's  St.  Tr.  927. 
It  is  blasphemy  to  write  and  publish  that  Jesus  Christ  was  an  impostor,  a 
murderer  in  principle,  and  a  fanatic.     Such  words  would  be  libellous  of  whom- 
oever  written,  and  the  jury  also  had  found  as  a  fact  that  the  intention  of  the 
prisoner  was  malicious  ;  and  the  Court  on  motion  refused  to  arrest  the  judgment. 
R.  v.  Waddington,  1  B.  &  C.  26. 
A  publication  which  denies  the  divinity  of  Jesus  Christ  is  not  a  blasphemous 
libel,  if  written  in  a  reverent  and  temperate  tone,  and  expressing  the  conscientious 
convictions  of  the  author. 

Shore  and  others  v.  Wilson  and  others  (1842),  9  Clark  &  F.  355. 
Edward  Elwall  was  indicted  before  Mr.  Justice  Denton  for  a  book  alleged  to 
be  blasphemous,  entitled  '"A  True  Testimony  for  God  and  for  His  Sacred  Law; 
being  a  plain,  honest  defence  of  the  First  Commandment  of  God  against  all 
Trinitarians  under  Heaven,  Thou  shalt  have  no  other  gods  but  me."  He  was 
acquitted,  though  he  admitted  publication. 

E.  v.  Elwall,  Gloucester  Summer  Assizes,  1726. 
To  write  and  publish  that  the  Christian  miracles  were  not  to  be  taken  in  a 
literal  but  in  an  allegorical  sense  was  held  blasphemous  in  1729  ;  but  there  the 
Court  clearly  considered  that  to  attack  the  miracles  was  to  attack  Christianity 
in  general,  and  could  not  be  included  amongst  "  disputes  between  learned  men 
upon  particular  controverted  points."     "  I  would  have  it  taken  notice  of,"  says 
Lord  Raymond,  C.  J.,  "  that  we  do  not  meddle  with  any  differences  of  opinion, 
and  that  we  interpose  only  where  the  very  root  of  Christianity  is  struck  at." 
R.  v.  Woolston,  2  Str.  834;  Fitz.  66  ;  1  Barnard.  162. 
To  deliver  a  lecture  publicly  maintaining  that  the  character  of  Christ  is 
defective,  and  his  teaching  misleading,  and  that  the  Bible  is  no  more  inspired 
than  any 'other  book,  was  held  blasphemy  by  the  Court  of  Exchequer  in  a  civil 
case  without  any  regard  to  the  style  of  the  lecture,  or  the  religious  convictions 
of  the  lecturer.  „ 

Cowan  v.  Milbourn,  L.  R.  2  Ex.  230  ;  36  L.  J.  Ex.  124  ;  15  W.  R.  750  ; 
16  L.  T.  290. 
It  was  held  blasphemy  to  publish  or  sell  Paine's  "  Age  of  Reason." 
R.  v.   Williams  (1797),  26  Howell's  St.  Tr.  656. 
R.  v.  Richard  Carlile  (1819),  3B.&  Aid.  161  ;  1  Chit.  451. 
[*444]  Richard  Carlile  on  his  trial  read  over  to  the  jury  the  whole  of  Paine's 
"  Age  of  Reason,"  for  selling  which  he  was  indicted.     After  his  conviction,  his 
wife  published  a  full,  true,  and  accurate  account  of  his  trial,  entitled  "The 
Mock  Trial  of  Mr.  Carlile,"  and  in  so  doing  republished  the  whole  of  the  "Age 
of  Reason,"  as  a  part  of  the  proceedings  at  the  trial.     Held,  that  the  privilege 
usually  attaching  to  fair  reports  of  judicial  proceedings  did  not  extend  to  such 
a  colourable  reproduction  of  a  book  adjudged  to  be  blasphemous  ;  and  that  it  is 
unlawful  to  publish  even  a  correct  account  of  the  proceedings  in  a  court  of 
justice,  if  such  an  account  contain  matter  of  a  scandalous,  blasphemous,  or 
indecent  nature. 

R.  v.  Mary  Carlile  (1819),  3  B.  &.  Aid.  167. 

See  also  Steele  v.  Brannan,  L.  R.  7  C.  P.  261  ;  41  L.  J.  M.  C.  85  ; 

20  W.  R.  607  ;  26  L.  T.  509  ;  post,  p.  475. 

Richard  Carlile  was  sentenced  to  pay  a  fine  of  £1,500,  to  be  imprisoned  for 

three  years,  and  to  find  sureties  for  his  good  behaviour  for  the  term  of  his  life. 

y  He  was  still  in  Dorchester  Gaol  in  1825.    In  the  meantime  the  sale  of  heterodox 

books  continued  at  his  shop,  and  his  shopmen  were  sentenced  to  various  terms 

of  imprisonment.      In  June,  1824,  William  Campion,  John  Clarke,  William 

Maley,  and  Thomas  Perry  were  sentenced  to  imprisonment  in  Newgate  for 

three  years,  Richard  Hassell  for  two  years,  and  Thomas  Jeffryes  for  a  year  and 

a  halt  for  selling  blasphemous  publications. 

(407) 


336  BLASPHEMOUS    WORDS. 

An  information  was  filed  against  Jacob  Hive  for  publishing  a  profane  and 
blasphemous  libel,  tending  to  vilify  and  subvert  the  Christian  religion,  and  to 
blaspheme  our  Saviour  Jesus  Christ,  to  cause  his  Divinity  to  be  denied,  to 
represent  him  as  an  impostor  ;  to  scandalize,  ridicule,  and  bring  into  contempt 
his  most  holy  life  and  doctrine  ;  and  to  cause  the  truth  of  the  Christian  religion 
to  be  disbelieved  and  totally  rejected,  by  representing  the  same  as  spurious  and 
chimerical,  and  a  piece  of  forgery  and  priestcraft. 
R.  v.  Hive  (1756),  Dig.  L.  L.  83. 

An  information  was  exhibited  against  Peter  Annet  for  a  certain  malignant, 
profane,  and  blasphemous  libel,  intituled  "The  Free  Inquirer,"  tending  to 
blaspheme  Almighty  God,  and  to  ridicule,  traduce,  and  discredit  his  Holy 
Scriptures,  particularly  the  Pentateuch,  and  to  represent,  and  to  cause  it  to  be 
believed,  that  the  prophet  Moses  was  an  impostor,  and  that  the  sacred  truths  and 
miracles  recorded  and  set  forth  in  the  Pentateuch  were  impositions  and  false 
inventions  ;  and  thereby  to  diffuse  and  propagate   irreligious   and   diabolical 


III     UUIO     a.llli;illllM.  1U     UUIO    .muiiiiui.u..    *.~    ^»^„v*v.„    0 j.  -— 

which,  and  of  his  poverty,  of  his  having  confessed  his  errors  in  an  affidavit,  and 
of  his  being  seventy  years  old,  and  some  symptoms  of  wildness  that  appeared 
on  his  inspection  in  Court,  the  Court  declared  they  had  mitigated  their  intended 
sentence  to  the  following,  viz.  to  be  imprisoned  in  Newgate  for  a  month  ;  to 
stand  twice  in  the  pillory,  with  a  paper  on  his  forehead,  inscribed  blasphemy  ; 
to  be  sent  to  the  house  of  correction  to  hard  labour  for  a  year ;  to  pay  a  fine  of 
6s.  8d.,  and  to  find  security,  himself  in  100/.  and  two  sureties  in  50/.  each,  for 
his  good  behaviour  during  life." 

R.  v.  Peter  Annet  (1763),  1  Wm.  Bl.  395;  3  Burn,  Eccl.  Law,  9th  ed. 
386.  ,.     . 

[*  445]  An  information  was  exhibited  against  John  Wilkes  for  publishing  an 
obscene  and  impious  libel,  tending  to  vitiate  and  corrupt  the  minds  and  man- 
ners of  his  Majesty's  subjects  ;  tolntroduce  a  total  contempt  of  religion,  mod- 
esty, and  virtue  ;  to  blaspheme  Almighty  God  ;  and  to  ridicule  our  Saw" our  and 
the  Christian  religion. 

R.  v.  Wilkes  (1763),  4  Burr.  2527  ;  2  Wils.  151. 
In  1817  Mr.  Wright,  of  Liverpool,  was  prosecuted  at  common  law  for  deny- 
inf  the  existence  of  a  future  life  ;  but  the  prosecution  was  abandoned. 
li.  v.  Wright,  3  Mer.  386,  n. 
In  the  same  year  William  Hone  was  tried  on  three  successive  days,  Decem- 
ber 18th,  19th,  and  20th,  1817,  for  publishing  three  parodies  on  the  Catechism, 
the  Litany,  and  the  Athanasian  Creed,  before  Abbott,  J.,  on  the  first  day,  and 
Lord  Ellenborough,  C.  J.,  on  the  other  two.     He  was  on  each  occasion  ac- 
quitted,  the  libels  being  political  attacks  on  the  Government,  and  not  written 
with  any  intent  of  ridiculing  the  compositions  parodied. 

"  The  Three  Trials  of  William  Hone,"  London,  1818. 
Eeflections  on  the  Old  Testament  may  amount  to  blasphemy. 

R.  v.  Hetherington  (1841),  5  Jur.  529. 
Queen  Mob  was  found  by  a  jury  in  1841  to  be  a  blasphemous  libel. 

R.  v.  Moxon,  2  "Mod.  St.  Tr.  356. 
But  this  prosecution  was  a  purely  vindictive  one  by  Hetherington,  and  no 
sentence  was  ever  passed.     Blackburn,  J.,  expresses  his  disapproval  of  their 
finding  in 

R.  v.  Ilicklin,  L.  R.  3  Q.  B.  374  ;  37  L.  J.  M.  C.  89  ;  16  W.  R.  803  ; 
11  Cox,  C.  C.  19  ;  18  L.  T.  395. 
Southwell  was  convicted  of  blasphemy  in  January,  1842,  for  publishing  the 
"  Oracle  of  Reason." 

Later  in  the  same  year  Adams  was  tried  befere  Mr.  Justice  Erskinc  at  Glou- 
cester Assizes  for  selling  No.  25  of  the  said  "  Oracle  of  Reason,"  and  convicted. 
At  the  same  Assizes  George  Jacob  Holyoake  was  tried  before  Mr.  Justice 
Erskine  for  oral  blasphemv.  It  appeared  that  he  had  been  lecturing  on  emi- 
gration and  the  poor  laws,'  and  at  the  close  a  man,  said  to  have  been  sent  on 
purpose  to  entrap  him,  rose  and  said  :  "  The  lecturer  has  been  speaking  of  our 
duty  to  man,  has  he  nothing  to  tell  us  as  to  our  duty  to  God  ?  "     Holyoake, 

(408) 


BLASPHEMY.  337 

being  thus  challenged,  replied,  "I  do  not  believe  there  is  such  a  thing  as  a 
God.  ...  I  would  have  the  Deity  served  as  they  serve  the  subalterns — place 
him  on  half-pay."  But  Holyoake  was  known  to  be  a  friend  of  Southwell's,  and 
a  writer  in  the  "  Oracle  of  Reason,"  and  he  was  convicted  and  sentenced  to  six 
months'  imprisonment. 

See  Trial  of  Holyoake,  London,  1842. 
Father  Vladimir  Petcherini,  a  monk,  was  indicted  in  Ireland  in  1855  for  hav- 
ing contemptuously,  irreverently,  and  blasphemously  burnt  a  Bible  in  public, 
with  intent  to  bring  the  same  into  disregard,  hatred,  and  contempt,  and  in 
other  counts  with  intent  to  bring  religion  into  discredit,  and  in  other  counts 
with  having  caused  and  procured  it  to  be  burnt  with  such  intents.  There  was 
some  evidence  that  a  Bible  had  been  burnt  in  the  defendant's  presence  among 
a  heap  of  other  books  and  papers,  but  very  little  that  he  knew  it  or  sanctioned 
it.  Greene,  B.,  directed  the  jury  that  if  he  sanctioned  it,  it  would  follow  "  as 
of  [*  446]  course  that  the  intention  of  the  act  could  only  be  to  bring  into  con- 
tempt the  authorized  version  of  the  Holy  Scriptures."  The  defendant  was 
acquitted. 

Reg.  v.  Petcherini,  7  Cox,  C.  C.  79. 
A  man  called  Pooley  was  indicted  at  the  Bodmin  Summer  Assizes,  July, 
1857,  before  Coleridge,  J.,  his  son,  the  present  Lord  Coleridge,  C.  J.,  being 
counsel  for  the  prosecution.  The  prisoner  had  scribbled  on  a  gate  some  dis- 
gusting language  concerning  Jesus  Christ,  and  was  convicted  of  a  blasphemous 
libel,  but  was  subsequently  discovered  to  be  insane. 

It.  v.  Pooley,  Digest  of  Criminal  Law,  97. 
In  November,  1868,  John  Thompson  was  committed  for  trial  by  the  South- 
ampton magistrates  on  the  prosecution  of  the  Rev.  Arthur  Bradley,  the  incum- 
bent of  a  church  there,  for  publishing  the  following  blasphemous  libel  : — "  I 
believe  Jesus  of  Nazareth  to  be  the  Messiah  at  his  first  coming,  as  an  anti- 
typical  Paschal  Lamb  who  died  for  sins  in  allegory  ;  and  I  believe  John  Coch- 
ran of  Glasgow  to  be  the  Messiah  at  his  second  coming,  and  the  antitypical 
High  Priest,  who  has  taken  away  sin  in  reality."  In  March,  1869,  the  Grand 
Jury  ignored  the  bill. 

Foote,  Ramsey,  and  Kemp  were  indicted  for  blasphemous  libels  and  pictures 
contained  in  the  Christmas  number  of  the  "Freethinker;"  Foote  being  the 
editor,  Ramsey  the  registered  proprietor,  and  Kemp  the  printer  and  publisher 
of  that  paper.  On  the  first  trial,  March  1st,  1883,  the  jury  could  not  agree, 
and  were  discharged.  The  prisoners  were  tried  again  on  Monday,  March  5th, 
1883,  and  convicted  and  sentenced  to  twelve,  nine,  and  three  months'  imprison- 
ment respectively.  North,  J.,  directed  the  jury  that  any  publication  contain- 
ing "  contumelious  reproach  or  profane  scoffing  against  Holy  Scripture  and  the 
Christian  religion  "  was  a  blasphemous  libel. 

It.  v.  Foote,  Ramsey,  and  Kemp,  Times  for  March  2nd  and  6th, 
1883. 
In  the  same  year  Ramsey  and  Foote  were  indicted  for  articles  which  had 
appeared  in  other  numbers  of  the  "Freethinker,"  which  were  alleged  to  be 
blasphemous.  Mr.  Bradlaugh,  M.P.,  was  at  first  included  also  in  this  indict- 
ment, but  the  case  against  him  was  tried  separately,  and  he  was  acquitted  on 
the  ground  that  he  was  in  no  way  responsible  for  the  publication.  See  15  Cox, 
C.  C.  217  ;  ante,  p.  436.  Ramsey  and  Foote  were  tried  before  Lord  Coleridge, 
C.  J.,  on  April  24th,  1883  ;  his  Lordship's  summing  up  will  be  found  printed 
inextenso  in  Appendix  B.,  post,  p.  688.  The  jury  could  not  agree  upon  a 
verdict,  and  on  Tuesday,  May  1st,  the  Attorney-General  issued  his  fiat  for  a 
nolle  prosequi. 

R.  v.  Ramsey  and  Foote,  48  L.  T.  733  ;  15  Cox,  C.  C.  231  ;  1  C.  & 
E.  126. 
For  other  cases  of  blasphemy  at  common  law,  see 

Traske's  Case  (1618),  Hobart,  326  ;  post,  p.  450. 

R.  v.  Atwood  (1618),  Cro  Jac.  421  ;  2  Roll.  Abr.  78  ;  post,  p.  450. 

R.  v.  Glendon  (1712),  cited,  2  Str.  789. 

R.  v.  Hall  (1721),  1  Str.  416. 

Paterson's  Case  (1843),  1  Brown  (Scotch),  629. 

Robinsons  Case  (1843),  ib.  643. 
22  LIB.  &  SLAN.  (409) 


338  BLASPHEMOUS    WORDS. 

Heresy  and  blasphemy  are  entirely  distinct  and  different  things, 
both  in  their  essence  and  in  their  legal  aspect.  Originally  [*447] 
both  were  ecclesiastical  offences  not  cognizable  in  the  secular  courts. 
Then  statutes  were  passed  under  which  both  became  crimes  punish- 
able in  the  ordinary  law  courts.  Now  heresy  is  once  more  a  purely 
ecclesiastical  offence,  punishable  only  in  the  clergy  ;  while  blas- 
phemy is  the  technical  name  for  a  particular  offence  against  the 
state. 

Heresy  (alpeoic,  from  alptopai,  I  choose  for  myself)  is  the  deliberate 
selection  and  adoption  of  a  particular  set  of  views  or  opinions,  which 
the  majority  consider  erroneous.  To  persist  in  the  tenet  of  your 
choice  after  its  error  and  its  injurious  tendency  have  been  pointed 
out  to  you  was  regarded  as  a  sin,  and  the  obstinate  heretic  who  re- 
fused to  recant  was  bidden  to  do  penance  for  the  good  of  his  soul. 
Blasphemy,  on  the  other  hand,  is  a  crime  against  the  peace  and 
good  order  of  society  ;  it  is  an  outrage  on  men's  religious  feelings, 
tending  to  a  breach  of  the  peace.  The  word  necessarily  involves 
an  intent  to  do  harm  or  to  wound  the  feelings  of  others,  for  it  is  de- 
rived from  (Ha-rrTu,  I  hurt,  and  ^p.1,  I  speak,  and  denotes,  therefore, 
"  speaking  so  as  to  hurt." 

Heresy. 

At  common  law  heresy  was  no  crime.  The  secular  courts  took  no 
cognizance  of  any  man's  religious  opinions  ;  and  indeed  before  the 
days  of  Wiclif  heretics  were  scarce.  Towards  the  end  of  the  four- 
teenth century,  however,  heresy  came  to  be  regarded  as  a  crime 
punishable  with  death,  and  acts  were  passed  in  the  reigns  of  Henry 
IV.  and  Henry  V.,  which  condemned  all  heretics  to  be  burnt  alive 
and  gave  the  clergy  the  power  of  defining  heresy  just  as  they 
pleased.  This  state  of  things  lasted  till  the  reign  of  Henry  VIII., 
when  the  law  was  rendered  in  some  particulars  less  severe.  Under 
Edward  VI.  there  were  but  two  executions  for  heresy.  Mary  re- 
stored the  old  system  for  a  short  period,  during  which  about  300  per- 
sons were  burnt. 

But  by  the  1  Eliz.  c.  1,8.  6,  all  statutes  relating  to  heresy  were 
repealed,  though  somehow  two  men  were  burnt  in  her  reign,  and  two 
under  James  I.  "  At  this  day,"  says  Sir  Edward  Coke,  "  no  person 
can  be  indicted  or  impeached  for  heresy  before  any  temporal  judge, or 
other  that  hath  temporal  jurisdiction."  (12  Rep.  57.)  By  the  29  Car. 
II.  c.  9,  s.  1,  the  writ  de  hceretico  comburenclo  was  abolished  ;  but  s.  2  of 
the  same  act  expressly  provides  "  that  nothing  in  this  act  shall  ex- 
tend, or  be  construed  to  take  away  or  abridge  the  jurisdiction  of 
Protestant  archbishops  or  bishops,  or  any  other  judges  of  any  eccle- 
siastical courts,  in  cases  of  atheism,  blasphemy,  heresy,  or  schism, 
and  other  damnable  doctrines  and  opinions,  but  that  they  may  pro- 
ceed to  [*448]  punish  the  same  according  to  His  Majesty's  ecclesias- 
tical laws,  by  excommunication,  deprivation,  degradation,  and  other 
ecclesiastical  censures,  not  extending  to  death,  in  such  sort,  and  no 
other,  as  they  might  have  done  before  the  making  of  this  act,  any- 
thing in  this  law  contained  to  the  contrary  in  anywise  notwithstand- 
ing."    By  the  53  Geo.  III.  c.  127,  s.  3,  it  is  enacted  that  "  no  person 

(410) 


HERESY.  339 

who  shall  be  pronounced  or  declared  excommunicate  shall  incur 
any  civil  penalty  or  incapacity  whatever,  in  consequence  of  such 
excommunication,  save  such  imprisonment,  not  exceeding  six  months, 
as  the  court  pronouncing  or  declaring  such  person  excommunicate 
shall  direct." 

These  enactments  are  obsolete  ;  but  they  were  better  repealed.  I 
do  not  know  that  any  layman  has  been  prosecuted  for  heresy  since 
1640.  And  indeed  there  is  considerable  authority  for  holding  that 
at  the  present  day  the  ecclesiastical  courts  no  longer  possess  any 

criminal  jurisdiction  over  laymen.     In  Burcler  v.  ,3  Curteis, 

827,  May  31st,  1844,  Sir  H.  Jenner  Fust  says  :  "  As  against  laymen, 
whatever  may  be  the  nature  of  the  charge,  undoubtedly  the  court 
has  no  jurisdiction  to  entertain  a  criminal  suit."  And  though  four 
years  earlier  a  criminal  suit  was  commenced  against  a  layman  for  an 
incestuous  marriage,  Dr.  Lushington  contented  himself  with  pro- 
nouncing the  marriage  null  and  void,  which  was  clearly  within  his 
power,  and  did  not  impose  any  punishment  or  penance  on  the  de- 
fendant, (Woods  v.  Woods,  2  Curt.  516,  July  18th,  1840)  and  in 
Philllmore  v.  Mac/ion,  1  P  D.  481,  Lord  Penzance  says  :  "  Speak- 
ing generally,  and  setting  aside  for  the  moment  all  questions  as  to 
the  clergy,  it  cannot,  I  think,  be  doubted  that  a  recurrence  to  the 
punishment  of  the  laity  for  the  good  of  their  souls  by  ecclesiastical 
courts,  would  not  be  in  harmony  with  modern  ideas,  or  the  position 
which  ecclesiastical  authority  now  occupies  in  the  country.  Nor  do 
I  think  that  the  enforcement  of  such  powers,  where  they  still  exist, 
if  then  do  exist,  is  likely  to  benefit  the  community." 

This  much  is  quite  clear  at  all  events — that  no  ecclesiastical  court 
can  any  longer  proceed  against  a  layman  for  mere  nonconformity. 
By  the  4th  section  of  the  Toleration  Act  (1  William  and  Mary  c. 
18),  no  dissenter  shall  be  prosecuted  in  any  ecclesiastical  court  for  or 
by  reason  of  his  nonconformity  to  the  Church  of  England.  And 
although  by  s.  1 7  it  was  provided  that  the  benefits  of  the  act  should 
not  extend  to  Unitarians,  this  exception  was  repealed  in  1813  by  the 
statute  53  Geo.  III.  c.  160.  With  respect  to  dissenting  ministers,  how- 
ever, one  relic  of  the  past  still  lingers.  By  s.  5  of  52  Geo.  III.  c, 
155,  any  justice  of  the  peace  may  call  on  the  minister  of  "  any  place 
of  religious  worship  certified  "  under  that  act  to  make  a  declaration 
to  the" following  [*449]  effect  : — "  I  am  a  Christian  and  a  Protest- 
ant, and  as  such,  I  believe  that  the  Scriptures  of  the  Old  and  New 
Testament  contain  the  revealed  will  of  God,  and  I  receive  the  same 
as  the  rule  of  my  doctrine  and  practice."  It  is  improbable  that 
any  justice  of  the  peace  is  aware  at  the  present  moment  that  he  pos- 
sesses this  power,  still  less  probable  is  it  that  he  would  ever  exercise 
it.  The  section  applies  only  to  ministers  of  chapels  certified  under 
the  53  Geo.  III.  c.  155,  and  very  few,  if  any,  dissenting  chapels  are 
certified  under  that  Act  :  they  are  all,  I  believe,  "  registered  "  under 
the  more  recent  and  comprehensive  Act,  18  &  19  Vict.  c.  81,  an  Act 
which  applies  to  Jews,  Roman  Catholics  and  every  other  denomina- 
tion, and  which  requires  no  declaration  of  any  kind.  Still  it  is 
wrong  that  a  justice  of  the  peace  should  have  the  power  to  impose 
such  a  test  on  any  one,  and  the  section  should  be  repealed  forthwith. 

(411) 


340  BLASPHEMY. 

Even  over  clergymen  of  the  Established  Church  the  power  of  the 
Ecclesiastical  Courts  has  been  greatly  restricted  by  the  judgment  of 
Her  Majesty's  Privy  Council  (including  the  Archbishop  of  Canter- 
bury), in  the  case  of  the  Rev.  Rowland  Williams,  Februarys,  1864, 
which  decided  that  it  is  not  an  ecclesiastical  offence,  even  for  the 
clergy,  to  dispute  the  dates  and  authorship  of  the  several  Books  of 
the  Old  and  New  Testaments,  to  deny  that  the  whole  of  the  Holy 
Scriptures  Mas  written  under  the  inspiration  of  the  Holy  Spirit,  to 
reject  parts  of  Scripture  upon  their  own  opinion  that  the  narrative 
is  inherently  incredible,  to  disregard  precepts  in  Holy  Writ  because 
they  think  them  evidently  wrong,  so  long  as  they  do  not  contradict 
any  doctrine  laid  down  in  the  Articles  or  Formularies  of  the  Church 
of  England.  (  Williams  v.  Bishop  of  /Salisbury,  Wilson  v.  Fendall 
(1864),  2  Moore,  P.  C.  (N.  S.)  375  ;  Brodrick  &  Fremantle,  247  ; 
Gorham  v.  Bishop  ofTJxeter  (1850)  ib.  64. 

It  must,  moreover,  be  pointed  out,  before  leaving  the  Ecclesiasti- 
cal Courts,  that  no  blasphemous  publication,  which  is  punishable  in 
the  secular  courts,  can  posibly  be  taken  cognizance  of  in  the  ecclesi- 
astical. For  "  where  the  common  or  statute  law  giveth  remedy  in 
foro  seculari  (whether  the  matter  be  temporal  or  spiritual)  the  con- 
usance of  that  cause  belongeth  to  the  King's  temporal  Court  only." 
(Coke  upon  Littleton,  96  b.,  and  see  Phillimore  v.  Machon,  1  P.  D. 
481.)  Hence  it  is  only  over  blasphemous  libels  not  punishable  by 
the  common  law  or  under  any  statute  that  the  Ecclesiastical  Courts 
can  have  any  jurisdiction  at  all.  (CtcrPs  case,  2  Strange,  89;  1 
Barnard.  29.)  The  canon  law,  speaking  generally,  is  not  binding, 
at  all  events  on  laymen.  "  The  canon  law  forms  no  part  of  the  law 
of  England,  unless  it  has  been  brought  into  use  and  acted  upon  in 
this  country  :  [*  450]  the  burden  of  proving  which  rests  on  those 
who  affirm  the  adoption  of  any  portion  of  it  in  England."  (Lord 
Denman,  C.  J.,  in  The  Queen  v.  The  Archbishop  of  Canterbury,  IT 
Q.  B.  49  ;  1 7  L.  J.  Q.  B.  268  ;  Middleton  v.  Croft,  Cas.  temp.  Hard- 
wicke,  57,  326.  See  Year  Book,  34  Hen.  VI.,  f'o.  38  (1459)  ;  Prisot, 
c.  5  ;  Fitch.  Abr.  quare  imp.  89  ;  Bro.  Abr.  qu.  imp.  12.)  Hence 
the  Ecclesiastical  Courts  have  no  concurrent  criminal  jurisdiction 
over  libels  ;  and  their  jurisdiction,  by  way  of  civil  proceeding 
for  defamation,  is  expressly  taken  away  by  the  18  &  19  Vict.  c. 
41,  s.  1. 

Blasphemy. 


So  much  for  the  ecclesiastical  offence  of  Heresy.  We  come  now 
to  the  law  relating  to  Blasphemy.  How  are  the  secular  Courts  con- 
cerned in  such  a  matter  at  all  ? 

The  answer  in  former  days  was  clear  and  obvious.  The  secular 
Courts  interfered  to  punish  blasphemous  libels  for  the  same  reason 
as  they  did  in  the  case  of  any  other  libel,  viz.,  in  order  to  prevent  a 
disturbance  of  the  peace.  Blasphemous  preaching  and  writing  led 
to  dangerous  outbreaks  of  fanaticism,  and  the  State  had,  therefore, 
a  direct  interest  in  their  suppression. 

(412) 


IN  THE  SEVENTEENTH  CENTURY.  341 

This  was  the  point  decided  in  the  Star  Chamber,  in  Traske's  case 
(1618),  the  earliest  reported  decision  on  the  subject.  The  defend- 
ant, John  Traske,  was,  in  the  words  of  the  report,  "a  minister  that 

held  opinion  that  the  Jewish  Sabbath  ought  to  be  observed,  and  not 
ours,  and  that  we  ought  to  abstain  from  all  manner  of  swine's  flesh. 
Being  examined  upon  these  things,  he  confessed  that  lie  had  di- 
vulged these  opinions,  and  had  laboured  to  bring  as  many  to  his  opin- 
ion as  he  could.  And  had  also  written  a  letter  to  the  king,  wherein 
he  did  seem  to  tax  his  majesty  of  hypocrisy,  and  did  expressly  in- 
veigh against  the  Bishops  High  Commissioners,  as  bloody  and  cruel 
in  their  proceedings  against  him,  and  a  Papal  Clergy.  Now  he, 
being  called  ore  te/ius,  was  sentenced  to  fine  and  imprisonment,  not 
for  holding  those  opinions  (for  those  were  examinable  in  the  Eccle- 
siastical Courts  and  not  here),  but  for  making  of  conventicles  and 
factions  by  that  means,  which  may  tend  to  sedition  and  commotion, 
and  for  scandalizing  the  king,  the  bishops  and  the  clergy."  (Hobart's 
Reports,  236.) 

In  the  same  year  (1618)  there  was  a  similar  decision  in  the  King's 
Bench,  in  Atwood's  case,  Cro.  Jac.  421  ;  2  Roll.  Abr.  78.  The  lan- 
guage complained  of  in  that  case  sounds  to  us  now  very  harmless  ; 
it  was  aimed  chiefly  at  the  prevailing  mode  of  worship: — "The 
[*  451]  religion  now  professed  is  but  fifty  years  old  :  preaching  is 
tut  prating  ;  prayer  once  a  day  is  more  edifying."  The  Court  at 
first  (in  Easter  Term)  doubted  if  they  had  jurisdiction,  as  the  words 
did  not  clearly  tend  to  a  breach  of  the  peace.  The  Attorney-Gen- 
eral, Sir  Henry  Yelverton,  thought  the  case  ought  to  go  before  the 
Ecclesiastical  Court  of  High  Commission.  (Croke,  Jac.  421.)  But 
the  King's  Bench  in  Michaelmas  Term  decided  that  the  indictment 
lay  ;  "  for  these  words  are  seditious  words  against  the  State  of  our 
Church  and  against  the  peace  of  the  Realm,  and  although  they  are 
spiritual  words,  still  they  draw  after  them  a  temporal  consequence, 
— viz.,  the  disturbance  of  the  peace."     (2  Roll's  Abridgment,  78.) 

The  next  decision  that  we  have  on  the  subject  is  B.  v.  Taylor 
(1676),  1  Ventr.  293  ;  3  Keble,  607,  621  ;  Tremayne's  Entries,  p. 
226.  This  case  contains  the  celebrated  dictum  of  Sir  Matthew  Hale, 
that  "Christianity  is  parcel  of  the  laws  of  England,"  a  phrase  that 
is  very  often  quoted,  and  has,  I  think,  been  misunderstood.  Let  us 
first  look  at  the  facts  of  the  case  which  was  before  him,  for  it  is 
most  unfair  to  learned  judges  to  seize  on  one  line  of  a  judgment, 
force  it  from  its  context,  and  treat  it  as  a  general  proposition  of 
abstract  law  to  be  pushed  to  all  extremes. 

Taylor  was  proved  to  have  preached  aloud  and  persistently  in  the 
market-place  at  Guildford  words  of  which  the  following  are  a 
sample  : — "  Christ  is  a  Whoremaster,  and  Religion  is  a  Cheat,  and 
Profession  is  a  Cloak,  and  they  are  both  cheats.  .  .  .  All  the 
Earth  is  mine,  and  I  am  a  King's  Son  ;  my  Father  sent  me  hither, 
and  made  me  a  Fisherman  to  take  Vipers,  and  I  neither  fear  God, 
Devil  nor  Man  ;  I  am  a  Younger  Brother  to  Christ,  an  Angel  of 
God.  .  .  .  No  Man  fears  God  but  an  Hypocrite.  .  .  .  Christ 
is  a  Bastard.  .  .  .  God  damn  and  confound  all  your  Gods,"  &c. 
The  information,  which  is  set  out  in  full  in  Tremayne's  Entries,  p# 

(413) 


342  BLASPHEMY 

226,  alleged,  among  other  things,  that  these  words  tended  to  destroy 
Christian  government  and  society.  It  was  no  doubt  argued  on 
behalf  of  Taylor,  as  it  was  in  the  earlier  case  of  Atwood,  that  the 
offence  was  punishable  only  in  the  spiritual  Court.  But  "  Hale  said 
that  such  kind  of  wicked,  blasphemous  words  were  not  only  an 
offence  to  God  and  religion,  but  a  crime  against  the  laws,  state,  and 
government,  and  therefore  punishable  in  this  Court  ;  for  to  say 
Religion  is  a  cheat  is  to  dissolve  all  those  obligations  whereby  the 
civil  societies  are  preserved  ;  and  Christianity  is  parcel  of  the  laws 
of  England,  and  therefore  to  reproach  the  Christian  religion  is  to 
speak  in  subversion  of  the  law."  Or,  as  the  judgment  is  more 
briefly  given  in  the  report  in  3  Keble,  at  [*452]  p.  607  : — "Hale, 
C.  J.  These  words,  though  of  ecclesiastical  cognizance,  yet  that 
'  Religion  is  a  cheat,'  tends  to  dissolution  of  all  government,  and 
therefore  punishable  here,  and  so  of  contumelious  reproaches  of 
God  or  the  Religion  established." 

When  we  consider  the  date  at  which  this  judgment  was  delivered 
(1676),  and  remember  how  mighty  a  part  religious  fanaticism  had 
played  in  the  social  disturbances  of  the  earlier  part  of  the  century, 
it  cannot,  I  think,  be  said  that  the  decision  in  Taylors  case  was 
wrong  either  in  fact  or  in  law.  The  concluding  sentence,  as 
reported  in  Ventris,  is  undoubtedly  too  wide.  It  should  have  been 
limited  (and  probably  was  by  the  Chief  Justice)  to  "such  kind  of 
blasphemous  words "  as  the  prisoner  was  charged  with  uttering. 
The  earlier  part  of  the  judgment  is  expressly  so  limited. 

Yet  the  dictum  at  the  end  of  the  judgment  of  Hale,  C.  J.,  in 
Ventris'  Report,  has  constantly  been  misconstrued  into  a  general 
and  abstract  proposition  of  law,  as  though  the  Chief  Justice  had 
said,  in  syllogistic  form, — 

"  To  disparage  any  part  of  the  law  of  England  is  a  crime. 

"  Christianity  is  a  part  of  the  law  of  England. 

"  Theref  ore  to  disparage  Christianity  is  a  crime." 

But  Hale,  C.  J.,  would  himself  have  been  the  first  to  deny  the 
major  premiss.  "  For,"  as  the  Commissioners  on  Criminal  Law 
remarked  in  their  Sixth  Report  (May  3,  1841,  p.  83),  "It  is  not 
criminal  to  speak  or  write  either  against  the  common  law  of  England 
generally,  or  against  particular  portions  of  it,  provided  it  be  not 
done  in  such  a  manner  as  to  endanger  the  public  peace  by  exciting 
forcible  resistance."  See  also  Jefferson's  Letter  to  Major  Cart- 
wright,  published  in  Cartwright's  Life  and  Correspondence.  It  is 
a  fact,  no  doubt,  that  Christianity  is  the  religion  of  the  church 
which  is  by  law  established  in  this  land  ;  but  it  does  not  follow  that 
to  attack  Christianity  in  peaceable  and  temperate  language  is  or 
ever  was  a  crime.  All  that  the  Court  intended  to  decide  in  Taylor's 
case  was  simply  this  : — "These  words  are  not  only  a  sin  ;  they  are 
also  a  crime.  They  are  punishable  in  a  temporal  Court  :  for  they 
tend  to  subvert  the  established  order  of  things,  of  which  Christianity 
is  a  part,  and  are  therefore  dangerous  to  the  State.  They  are  in 
fact  seditious."  And  as  though  to  make  the  grounds  of  their 
decision  clear  beyond  all  doubt  the  Court  condemned  Taylor,  as 
part  of  his  punishment,  to  stand  in  the  pillory,  both  at  Westminster 

(414) 


IN    THE    EIGHTEENTH    CENTURY.  343 

Palace-yard  and  also  at  Guildford  where  he  spoke  the  words,  with 
a  paper  fixed  to  his  head  with  these  words  written  on  it  in  large 
letters: — "For  Blasphemous  Words  tending  to  the  Subversion  of 
all  Government."     (Tremayne,  226;  3  Keble,  621.) 

[*  453]  This,  then,  is  the  first  stage  in  the  development  of  our 
law  of  libel.  The  State  steps  in  to  suppress  harangues  which 
endanger  the  peace  and  good  order  of  society.  The  substance 
or  matter  of  the  harangue  is  comparatively  immaterial  ;  the  "  sec- 
ular arm"  is  only  concerned  with  its  political  consequences. 

To  one  charge,  therefore,  which  has  been  brought  against  our 
law  as  to  blasphemy,  it  is  not  amenable,  at  all  events  in  this  its 
earliest  form.  It  does  not  "take  the  Deity  under  its  protection." 
It  does  not  attempt  to  "  avenge  the  insult  done  to  God."  The 
offender  is  punished  for  his  offence  against  his  fellow-men,  not  for 
his  offence  against  God.  No  judge  and  jury  ever  tried  a  man  for  a 
sin  that  was  not  also  a  crime.  As  Erskine,  J.,  said,  in  sentencing 
Holyoake  in  1842,  "  The  arm  of  the  law  is  not  stretched  out  to  pro- 
tect the  character  of  the  Almighty  ;  Ave  do  not  assume  to  be  the 
protectors  of  our  God,  but  to  protect  the  people  from  such  indecent 
language."  Very  similar  words  were  spoken  by  Mr.  Justice  Ash- 
hurst  in  passing  sentence  upon  Williams,  who  was  tried  in  1797  for 
publishing  Paine's  Age  of  Reason  : — "  Although  the  Almighty  does 
not  stand  in  need  of  the  feeble  aid  of  mortals  to  vindicate  His 
honor  and  law,  it  is,  nevertheless,  fit  that  courts  of  judicature  should 
show  their  abhorrence  and  detestation  of  people  capable  of  sending 
into  the  world  such  infamous  and  wicked  books.  Indeed,  all 
offences  of  this  kind  are  not  only  offences  to  God,  but  crimes 
against  the  law  of  the  land,  and  are  punishable  as  such,  inasmuch 
as  they  tend  to  destroy  those  obligations  whereby  civil  society  is 
bound  together.  And  it  is  upon  this  ground  that  the  Christian 
religion  constitutes  part  of  the  law  of  England."  (26  Howell's 
State  Trials,  p.  714.) 

So,  in  1838,  Alderson,  B.,  told  the  jury,  in  GathercoWs  case,  2 
Lewin  C.  C.  at  p.  254,  that  "a  person  may,  without  being  liable  to 
prosecution  for  it,  attack  any  sect  of  the  Christian  religion,  save 
the  established  religion  of  the  country  ;  and  the  only  reason  why 
the  latter  is  in  a  different  situation  from  the  others  is  because  it  is 
the  form  established  by  law,  and  is  therefore  a  part  of  the  consti- 
tution of  the  country.  In  like  manner  and  for  the  same  reason  any 
general  attack  upon  Christianity  is  the  subject  of  criminal  prosecu- 
tion, because  Christianity  is  the  established  religion  of  the  country." 
And  he  directed  the  jury  to  acquit  the  prisoner  if  they  thought  the 
libel  "  was  merely  an  attack  upon  the  Roman  Catholic  Church  " 
(see  ante,  p.  424).  This  ruling,  while  it  clearly  states  the  grounds 
on  which  the  law  against  blasphemy  was  supported,  shows  with 
equal  clearness  how  one-sided  was  its  operation. 

L*454]  U 

But  with  the  eighteenth  century  comes  a  new  development  in 
this  branch  of  the  law.     In  the  case  of  B.   v.   Woolston  (1729), 

(415) 


344  BLASPHEMY 

Fitz.  G4  ;  1  Barnard.  162,  266  ;  2  Strange,  832,  the  Court  of  King's 
Bench,  while  professing  to  follow  B.  v.  Taylor,  greatly  extended 
the  principle  of  that  decision,  making  criminal  liability  depend  on 
the  heretical  character  of  the  opinions  expressed.  Woolston  was  a 
Fellow  of  Sidney  College,  Cambridge,  who  had  published  six  "Dis- 
courses on  the  Miracles  of  our  Saviour,"  urging  that  they  were 
not  to  he  taken  literally,  but  allegorically  or  mystically.  His 
trenchant  arguments,  which  were  conveyed  in  most  forcible  lan- 
guage, gave  great  offence  to  the  bishops,  and  Woolston  was  pros- 
ecuted and  found  guilty.  The  indictment  against  him  contained 
an  express  allegation  that  these  discourses  were  published  "  with 
an  intent  to  vilify  and  subvert  the  Christian  religion "  (see  the 
report  in  Fitzgibbon)  ;  hence  the  verdict  of  the  jury  amounted  to  a 
finding  (in  my  opinion  erroneous)  that  such  was  Woolston's  intent. 
His  counsel,  Dr.  Worley,  moved  in  arrest  of  judgment  that  these 
discourses  did  not  amount  to  a  libel  upon  Christianity,  since  the 
Scriptures  were  not  denied  ;  that  the  offence  was  of  ecclesiastical 
cognizance  ;  that  the  defendant  should  have  been  proceeded  against 
upon  the  stat.  10  William  HI.  c.  32  ;  and  he  was  prepared  to  go 
further  and  argue  that  even  though  the  book  was  a  libel  upon 
Christianity,  yet  the  common  law  had  not  cognizance  of  such  an 
offence,  when  he  was  stopped  by  the  Court,  Raymond,  C.  J., 
declaring  on  the  authority  of  Taylor's  case  (1  Ventris,  293  ;  3 
Keble,  607),  that  "  Christianity  in  general  is  parcel  of  the  common 
law  of  England,  and,  therefore,  to  be  protected  by  it.  Now  Avhat- 
ever  strikes  at  the  very  root  of  Christianity  tends  manifestly  to  a 
dissolution  of  the  civil  government.  So  that  to  say  an  attempt  to 
subvert  the  established  religion  is  not  punishable  by  those  laws 
upon  which  it  is  established  is  an  absurdity.  I  would  have  it  taken 
notice  of  that  we  do  not  meddle  with  any  differences  in  opinion, 
and  that  we  interpose  only  where  the  very  root  of  Christianity 
itself  is  struck  at,  as  it  plainly  is  by  this  allegorical  scheme,  the 
New  Testament,  and  the  whole  relation  of  the  life  and  miracles  of 
Christ  being  denied  ;  and  who  can  find  this  allegory  ?  " 

Similarly,  in  1708,  when  a  man  called  Read  was  indicted  for 
publishing  an  obscene  libel,  Chief  Justice  Holt  expressed  a  strong 
opinion  that  such  a  publication  was  a  purely  ecclesiastical  offence,  not 
punishable  in  the  temporal  courts  (Fortescue,  98  ;  11  Mod.  142). 
But  afterwards  in  Curl's  case  (1727)  (l  Barnard.  29  ;  2  Strange,  788), 
[*  455]  the  judgment  of  Hale,  C.  J.,  in  Taylor's  case  was  cited, 
and  the  Court  of  King's  Bench  decided  that  an  obscene  libel  was 
"  punishable  at  common  law  as  an  offence  against  the  peace,  intend- 
ing to  weaken  the  bondf  of  civil  society,  virtue,  or  morality  ;"  the 
Chief  Justice  giving  his  judgment  somewhat  guardedly  :  "  If  it 
reflects  on  religion,  virtue,  or  morality,  if  it  tends  to  disturb  the 
civil  order  of  society,  I  think  it  is  a  temporal  offence  "  (2  Strange, 
790). 

The  same  law  was  laid  down  in  1716  by  Hawkins,  in  his  "  Pleas 
of  the  Crown,"  Book  I.  c.  5  : — "  Offences  of  this  nature,  because 
they  tend  to  subvert  all  religion  and  morality,  which  are  the 
foundation  of  government,  are  punishable  by  the  temporal  judges 

(416) 


IN    THE    EIGHTEENTH    CENTURY.  345 

with  fine  and  imprisonment."  So  in  summing  up  to  the  jury  in 
the  Irish  case  of  R.  v.  Father  Petcherini  (1855)  (7  Cox,  C.  C.  at  p. 
84),  Greene,  B.,  told  them  that  there  could  be  no  doubt  that  the  act 
complained  of — burning  a  Bible  in  public — was  "  one  of  grave  and 
serious  nature,  and  amounts  by  the  law  of  the  land  to  a  criminal 
offence.  It  has  been  truly  stated  to  you  that  the  Christian  religion 
is  part  and  parcel  of  the  law  of  this  land.  Any  publication  or  any 
conduct  tending  to  bring  Christianity  or  the  Christian  religion  into 
disrespect,  or  expose  it  to  hatred  or  contempt,  is  not  only  commit- 
ting an  offence  against  the  majesty  of  God,  but  is  in  violation  of 
the  common  law  of  the  land.  Among  the  ways  in  which  that 
offence  may  be  committed  is  by  exposing  the  Word  of  God,  or  any 
part  of  it,  to  obloquy  or  hatred.  The  highest  authorities  have  laid 
down  the  law  in  that  way,  both  ancient  and  modern." 

And  the  decision  in  li.  v.  Woolston  has  been  followed  in  this 
generation,  as  recently  as  1867,  in  a  civil  case,  Cowan  v.  Milbourn, 
L.  R.  2  i:x.  230  ;  36  L.  J.  Ex.  124  ;  15  W.  R.  750  ;  16  L.  T.  290, 
in  which  the  Court  of  Exchequer  decided  that  the  defendant  was 
justified  in  refusing  to  carry  out  a  contract  to  let  certain  rooms, 
because  the  plaintiff  proposed  to  deliver  in  them  lectures,  the  titles 
of  two  of  which  were  advertised  as  follows  : — "  The  Character  and 
Teachings  of  Christ  ;  the  former  defective,  the  latter  misleading  ; " 
"  The  Bible  shown  to  be  no  more  inspired  than  any  other  book." 
The  action  was  tried  in  the  Passage  Court  at  Liverpool,  and  the 
Recorder  directed  the  verdict  to  be  entered  for  the  defendant,  but 
gave  the  plaintiff  leave  to  move  the  Court  of  Exchequer  to  enter 
the  verdict  for  him,  the  damages  being  contingently  assessed  at  10£ 
on  each  count.  The  plaintiff  accordingly  moved  ex  parte  for  a  rule 
?iisi  in  pursuance  of  the  above  leave.  The  lectures  never  were 
delivered,  and  the  propositions  intended  to  be  maintained  in  them 
could  hardly  have  been  expressed  on  the  placards  in  less  offensive 
language.  Yet  [*  456]  Kelly,  C.  B.,  held  that  it  was  clear  from  the 
advertisements  that  the  lecturer  was  going  to  attack  Christianity  in 
general,  and  that  to  do  this  publicly  was  clearly  blasphemy  at  com- 
mon law.  Baron  Bramwell,  on  the  other  hand,  relied  on  the  statute 
9  &  10  Will.  III.  c.  32,  s.  1,  the  Recorder  having  elicited  from  the 
plaintiff  at  the  trial,  as  appears  from  the  report  in  the  Law  Times, 
that  he  had  been  educated  in  the  Christian  religion.  But  at  the 
end  of  his  judgment  the  learned  Baron  seems  to  abandon  this 
ground,  and  to  admit  that  possibly  the  lecture  was  not  positively 
criminal,  in  the  sense  of  being  indictable,  while  maintaining  that  it 
still  was  unlawful  as  being  contra  honos  mores.  This,  no  doubt,  is 
a  solid  distinction  in  many  cases';  but  with  all  respect  I  venture  to 
doubt  if  there  can  be  such  a  distinction  in  slander  and  libel.  Either 
the  words  are  criminal  or  they  are  innocent.  The  right  of  free 
speech  applies  the  instant  the  veto  of  the  law  is  removed  :  there 
can  be  no  tertium  quid,  no  debatable  ground  of  language  not 
criminal,  yet  reprobated  by  the  law. 

The  learned  Baron  also  remarked  during  the  argument  (16  L.  T. 
291),  "I  have  heard  it  said  by  a  learned  judge  that  blasphemy  is 
more  in  the  manner  and  spirit  of  treating  the  subject  than  in  the 

(417j 


346  BLASPHEMY 

actual  matter  itself."  And  Baron  Martin's  judgment  was  as  fol- 
lows : — "  I  am  quite  of  the  same  opinion.  I  protest  against  the 
notion  that  this  is  any  punishment  of  the  persons  advocating  these 
opinions.  It  is  merely  the  case  of  the  owner  of  property  exercising 
his  rights  over  its  use."  Hence  it  cannot  be  said  that  either  of 
these  learned  Barons  concurred  in  the  law  laid  down  by  the  Lord 
Chief  Baron.  And  the  case  is  in  other  respects  unsatisfactory  as 
an  authority  on  a  point  of  criminal  law.  being  a  somewhat  hurried 
decision,  refusing  an  application  for  a  rule  tdsi  in  a  civil  case  in 
which  only  20l.  was  in  dispute. 

Still,  these  cases,  if  they  stood  alone,  would  undoubtedly  establish 
this  proposition,  that  "  whatever  strikes  at  the  very  root  of  Chris- 
tianity tends  manifestly  to  a  dissolution  of  the  civil  government," 
and  is  therefore  punishable  as  a  crime,  although  the  language  and 
temper  of  the  writer  be  irreproachable.  This  proposition  appears  to 
me  to  be  inconsistent  with  the  law  laid  down  in  the  earlier  cases  ;  it 
is  in  fact  punishing  a  man  for  his  opinions,  which,  as  was  held  in 
Traske's  case  (ante,  p.  450),  were  examinable  only  in  the  Ecclesi- 
astical Courts. 

What  reason,  then,  is  alleged  for  this  extension  of  the  former 
law  ?  It  is  based  on  the  maxim  that  "  every  man  must  be  taken  to 
have  intended  the  natural  and  necessary  consequences  of  his  act." 
This  is  the  argument,  as  I  understand  it  : — Though  the  writer  may 
honestly  desire  to  arrive  at  the  truth,  and  though  he  may  have 
expressed  his  [*457]  objectionable  arguments  with  no  more  pro- 
fanity than  their  statement  necessarily  involved,  still  it  will  be  the 
duty  of  both  judge  and  jury  to  consider  the  effect  of  a  general  dis- 
semination of  those  opinions.  If  the  doctrines  maintained  are  such 
that  their  direct  tendency  is  to  subvert  religion,  to  destroy  morality, 
and  "to  dissolve  all  the  bonds  and  obligations  of  civil  society,"  then 
the  maxim  applies,  and  the  judge  must  direct  a  conviction,  for  the 
necessary  malice  is  presumed.  • 

Now  every  one  would  naturally  be  reluctant  to  construe  into  a 
crime  the  fair  and  temperate  expression  of  opinions  sincerely  enter- 
tained, merely  in  obedience  to  a  legal  presumption.  And  it  will 
be  observed  that  the  whole  of  the  above  argument  rests  on  the 
assumption  that  the  natural  and  necessary  consequence  of  publishing 
heretical  opinions  is  to  destroy  religion  and  morality,  and  to  subvert 
the  civil  government. 

This  assumption  I  deny.  I  can  understand  that  where  a  man 
intentionally  shocks  or  insults  the  religious  feelings  of  others  he  is 
weakening  that  sentiment  of  reverence  for  holy  things  which  is  a 
safeguard  of  morality  :  and  his  conduct  also  may  conduce  to  a  breach 
of  the  peace.  But  where  a  man  honestly  states  in  calm  and  temperate 
language  and  without  any  sophistical  argument  the  views  which  he 
conscientiously  entertains  and  at  which  he  has  arrived  by  careful  and 
reverent  study  of  the  question,  I  deny  that  such  an  avowal  of 
heretical  or  even  atheistical  opinions  tends  either  to  subvert  religion, 
to  destroy  morality,  or  to  dissolve  any  of  the  bonds  and  obligations 
of  civil  society. 

(418) 


IN    THE    EIGHTEENTH    CENTURY. 


347 


In  the  first  place,  how  can  it  subvert  religion  ?  Magna  est  Veritas 
et  prcevalebit.  The  free  discussion  of  doctrines  cannot  injure  the 
sacred  cause  of  truth.  The  orthodox  possess  at  least  as  much  learning 
and  ability  as  the  heretic.  Let  them  confute  his  errors  by  fair 
argument.  "  Fur,  if  we  be  sure  we  are  in  the  right,"  says  Milton,  in 
his  Areopagitica  (p.  G5,  Arber's  Reprint),  "  and  do  not  hold  the  truth 
guiltily,  which  becomes  not,  ....  what  can  be  more  fair  than  when 
a  man  judicious,  learned,  and  a  conscience  for  aught  we  know 
as  good  as  theirs  that  taught  us  what  we  know,  shall  .  .  .  .  openly 
by  writing  publish  to  the  world  what  his  opinion  is,  what  his  reasons, 
and  wherefore  that  which  is  now  taught  cannot  be  sound."  I  have 
no  fears  of  the  results  of  the  freest  or  most  advanced  criticism  if 
only  it  be  scholarly  and  reverential. 

Next,  how  can  it  be  said  that  the  frank  avowal  of  heretical 
opinions  necessarily  conduces  to  immorality.  There  is  sometimes 
more  immorality  in  the  concealment  of  such  views  by  those  who 
secretly  entertain  them.  Can  it  be  said  that  Woolston  led  an 
[*458]  immoral  life,  because  he  disbelieved  in  the  literal  accuracy  of 
the  Gospel  narrative  as  to  the  miracles?  The  orthodox  have  no 
monopoly  of  virtue  ;  there  is  no  necessary  connection  between 
heresy  and  vice. 

Lastly,  how  can  the  statement  of  heretical  views  in  temperate  and 
inoffensive  language  by  one  who  conscientiously  believes  in  the  truth 
of  what  he  writes  or  says,  tend  in  any  way  "  to  disturb  civil  order  and 
good  government,"  or  to  "  dissolve'all  the  bonds  and  obligations  of 
civil  society."  Does  not  a  heretic  pay  his  bills  and  keep  his  promises 
like  any  other  citizen  ?  It  is  the  Salvation  Army  and  the  Orangemen 
who  cause  riots  in  our  streets,  not  the  Secularists  and  Agnostics. 
There  is  one  argument  frequently  adduced  in  the  earlier  cases  in 
favour  of  prosecution  for  blasphemy— that  all  attacks  upon  the 
established  religion  tend  to  destroy  the  solemnity  of  an  oath  "  on 
which  the  due  administration  of  justice  depends,"  and  thus  "  the  law 
will  be  stripped  of  one  of  its  principal  sanctions — the  dread  of  future 
punishment."  But  the  strength  of  this  argument  is  now  destroyed 
by  the  Acts  recently  passed  permitting  atheists  and  persons  who  do 
not  believe  in  a  future  life  to  give  evidence  in  our  law  courts.  (See 
the  1  &  2  Vict.  c.  105,  s.  1  ;  32  &  33  Vict.  c.  68,  s.  4  ;  33  &  34  Vict. 
c.  49,  s.  1.)  Atheists  even  sit  in  parliament,  and  make  for  lis 
those  very  laws  which  are  "the  bonds  and  obligations  of  civil 
society." 

I  submit,  therefore,  that  now  at  the  end  of  the  nineteenth  century 
we  know  by  practical  experience  that  such  a  book  as  Woolston's  does 
not  in  fact  produce  the  consequences  which  Lord  Raymond  held  it 
would.  It  was  perhaps  natural  that  in  those  days  the  Chief  Justice 
should  dread  such  result  :  but  we  have  since  tried  universal  toleration 
and  found  it  highly  beneficial.  It  is  to  the  public  interest  that 
heretical  opinions  should  be  freely  advanced  and  fairly  answered, 
without  unnecessary  irreverence.  If  any  man  has  discovered  what 
he  honestly  believes  to  be  a  valuable  truth,  it  is  right  that  he  should 
publish  it  to  the  world,  and  if  he  does  so  bond  fide  and  in  calm 
and  temperate  language,  then,  however  mistaken  he  may  be,  his 

(419) 


348  BLASPHEMY 

publication  is  privileged,   and  he  ought  not  to  be  punished  as  a 
libeller  either  in  a  civil  or  criminal  court. 

III. 

Hence,  in  the  nineteenth  century  the  law  against  blasphemy  reaches 
a  third  stage.  There  is  no  longer  any  danger  to  the  State  ;  no 
amount  of  heretical  sermons  would  produce  a  revolution  now  ;  though 
if  their  tone  were  very  offensive  and  aggravating,  the  audience  might 
possibly  assault  the  preacher.  Nor  does  our  law  any  longer  interfere 
with  men's  religious  opinions  ;  no  Court  in  England,  whether  secular 
[*459]  or  ecclesiastical,  will  now  take  cognizance  of  such  matters. 
It  is  the  malicious  intent  to  insult  the  religious  feelings  of  others  by 
profanely  scoffing  at  all  they  hold  sacred,  which  deserves  and 
receives  punishment. 

This  view  of  our  law  against  blasphemy  was  strongly  advocated  by 
that  eminent  lawyer,  the  late  Mr.  Stai-kie,  the  first  edition  of  whose 
Treatise  on  the  Law  of  Slander  and  Libel  was  published  in  1812,  the 
second  in  1830.  (See  especially  Vol.  II.,  c.  G,  pp.  143 — 147.)  This 
is  the  view  adopted  by  the  judges  in  the  House  of  Lords  in  Shore  v. 
Wilson,  9  CI.  &  Fin.  355.  This  is  the  view  that  has  recently  been 
stated  in  the  admirable  address  of  the  Lord  Chief  Justice  of  England 
to  the  jury  in  the  case  of  Reg.  v.  -Ramsey  and  Foote,  48  L.  T.  733  ; 
15  Cox,  C.  C.  231  ;  1  C.  &  E.  126.  This  address  states  in  the  most 
clear  and  convincing  language  the  principles  that  are  truly  to  be 
deduced  from  the  early  authorities  on  the  subject.  It  is  printed  in 
extenso,  as  revised  by  his  Lordship,  in  Appendix  B.,  post,  p.  688.  I 
therefore  merely  quote  here  the  following  passage: — "If  the  law,  as 
I  have  laid  it  down  to  you,  is  correct — and  I  believe  it  has  alwaj^s 
been  so — if  the  decencies  of  controversy  are  observed,  even  the 
fundamentals  of  religion  may  be  attacked  without  a  person  being 
guilty  of  blasphemous  libel.  There  are  many  great  and  grave  writers 
who  have  attacked  the  foundations  of  Christianity.  Mr.  Mill  un- 
doubtedly did  so  ;  some  great  writers  now  alive  have  done  so  too  ; 
but  no  one  can  read  their  writings  without  seeing  a  difference  between 
them  and  the  incriminated  publication,  which  I  am  obliged  to  say 
is  a  difference,  not  of  degree,  but  of  kind.  There  is  a  grave,  an 
earnest,  a  reverent,  I  am  almost  tempted  to  say  a  religious  tone  in 
the  very  attacks  on  Christianity  itself,  which  shows  that  what  is 
aimed  at  is  not  insult  to  the  opinions  of  the  majority  of  Christians, 
but  a  real,  quiet,  honest  pursuit  of  truth.  If  the  truth  at  which 
these  writers  have  arrived  is  not  the  truth  we  have  been  taught,  and 
which,  if  we  had  not  been  taught  it,  we  might  have  discovered,  yet 
because  these  conclusions  differ  from  ours,  they  are  not  to  be  exposed 
to  a  criminal  indictment.  With  regard  to  these  persons,  therefore, 
I  should  say  they  are  within  the  protection  of  the  law,  as  I  under- 
stand it." 

It  is  no  new  law  that  the  Lord  Chief  Justice  has  laid  down.  Pre- 
cisely the  same  view  was  held  by  his  father,  Mr.  Justice  Coleridge, 
and  stated  to  the  jury  in  the  case  of  R.  v.  Pooley,  tried  at  Bodmin 
Summer  Assizes  in  1857.     (See  Sir  James  Stephen's  Digest  of  the 

(,420) 


IN   THE   NINETEENTH    CENTURY.  349 

Criminal  Law,  p.  97,  n.)  Mr.  Justice  Erskine,  in  sentencing  Adams 
at  Gloucester  in  1842,  for  selling  No.  2.5  of  the  Oracle  <>/  Reason, 
said  : — "  By  the  law  of  this  country,  every  man  has  a  right  to 
express  his*[*460]  sentiments  in  decent  language."  And  in  summing 
up  in  the  case  of  li.  v.  Holyoake,  the  same  Learned  judge  told  the 
jury  : — "If  you  are  convinced  that  he  uttered  the  words  with  levity, 
for  the  purpose  of  treating  with  contempt  the  majesty  of  the 
Almighty  God,  he  is  guilty  of  the  offence.  If  you  think  he  made 
use  of  these  words  in  the  heat  of  argument  without  any  such  intent, 
you  will  give  him  the  benefit  of  the  doubt."  Mr.  Justice  Best  gave 
a  similar  direction  to  the  jury  in  the  ease  of  Ji.  v.  Mary  CarliU 
(1819)  ;  see  State  Trials  (New  Scries),  Vol.  I.  Lord  Denman,  ('.  .!., 
in  3Io.ro/rs  case  (2  Townsend's  Modern  State  Trials,  at  p.  38«), 
expressly  directed  the  attention  of  the  jury  to  the  fact  that  "the 
purpose  of  the  passage  cited  from  'Queen  Mab '  was,  he  thought,  to 
cast  reproach  and  insult  upon  what,  in  Christian  minds,  were  the 
peculiar  objects  of  veneration,"  and  left  to  the  jury  these  questions: 
— "  Were  the  lines  indicted  calculated  to  shock  the  feelings  of  any 
Christian  reader?  Were  their  points  of  offence  explained,  or  was 
their  virus  neutralized  by  any  remarks  in  the  margin,  by  any  note 
of  explanation  or  apology?  If  not,  they  were  libels  on  God,  and 
indictable."     (June  23rd,  *1 841.) 

And  there  is  a  long  string  of  decisions  in  Chancery,  bearing  on  the 
subject,  which  strongly  support  the  opinion  expressed  by  Lord  Cole- 
ridge. In  equity  no  trust  will  be  enforced,  no  legacy  will  be  held 
valid,  the  object  of  which  is  to  promote  an  illegal  or  immoral  act. 
Hence,  if  the  doctrines  advocated  by  a  particular  sect  were  blasphe- 
mous, a  legacy  or  trust  in  favour  of  that  sect  would  be  set  aside.  It 
follows  that  where  we  find  a  legacy  or  trust  for  the  dissemination  of 
any  particular  doctrines  upheld  after  argument  in  the  Court  of 
Chancery,  those  doctrines  cannot  be  illegal  or  immoral  and  certainly 
are  not  blasphemous.  It  would  be  absurd  to  contend  that  one  Divi- 
sion of  the  High  Court  of  Justice  will  punish  as  a  crime  teaching 
which  another  branch  of  the  same  Court  will  encourage  and  enforce. 
Or,  to  quote  the  words  of  Lord  Mansfield  in  Eoans''  case,  already 
cited  :  "  Nothing  can  be  plainer  than  that  the  law  protects  nothing 
in  that  very  respect,  in  which  it  is  at  the  same  time  in  the  eye  of 
the  law  a  crime.      (16  Parliamentary  History,  p.   320.) 

Now,  Lord  Raymond  would  certainly  have  held,  that  to  deny  the 
Deity  of  Christ  was  "  to  strike  at  the  very  roots  of  Christianity." 
Yet  bequests  and  trusts  in  favour  of  Unitarianism  are  always  enforced 
in  Chancery.  So  much  of  the  Toleration  Act  as  excepted  persons 
denying  the  Trinity  from  its  benefits,  and  so  much  of  the  Blasphemy 
Act* of  William  III.  as  related  to  persons  who  "deny  any  one  of  the 
Three  Persons  in  the  Holy  Trinity  to  be  God,"  were  repealed  in  1813 
by  the  53  Geo.  III.  c.  160.  Lord  Eldon,  in  1817,  pointed  out  that 
[*461]  this  repeal  only  left  the  common  law  exactly  as  it  was  before 
the  9  &  10  Will.  III.  c.  32,  was  passed,  and  deliberately  abstained 
from  expressing  any  opinion  as  to  whether  the  publication  of  Uni- 
tarian opinions  was  or  was  not  an  offence  at  common  law.  (Att.- 
Gen.  v.  Pearson  (1817),  3  Mer.  405,  407.)     At  the  same  time,  the 

(421) 


350  BLASPHEMY 

Lord  Chancellor  expressly  laid  down  the  principle  at  p.  399  : — "  It 
is  quite  certain  that  I  ought  not  to  execute  a  trust,  the  object  of 
which  is  illegal."  But  all  doubt  has  since  been  set  at  rest.  In  the 
case  of  Lady  Iletvley's  Charities  {Shore  v.  Wilson,  9  Clark  &  Fin. 
355)  in  the  House  of  Lords  in  1842  the  question  was  put  to  the 
judges  whether  ministers  and  preachers  of  Unitarian  belief  and 
doctrine  were,  in  the  then  state  of  the  law,  incapable  of  partaking 
of  religious  charities  (p.  499);  and  they  all  (Mr.  Justice  Maule,  Mr. 
Justice  Erskine,  Mr.  Justice  Coleridge,  Mr.  Justice  Williams,  Baron 
Gurney,  Baron  Parke,  and  Lord  Chief  Justice  Tindal)  answered 
this  question  in  the  negative.  Mr.  Justice  Maule  said  (p.  509)  : — 
"  There  is  no  statute  now  in  force  prohibiting  the  profession  or 
preaching  of  Unitarian  doctrines,  and  I  have  not  found  any  author- 
ity to  show  that  it  is  prohibited  at  common  law."  Mr.  Justice 
Erskine  said  (p.  524)  : — "Although  the  repeal  by  the  statute  53 
Geo.  III.  c.  160,  of  the  incapacities  and  penalties  imposed  by  the 
earlier  statutes  has  not  made  any  difference  as  to  the  truth  or  error 
of  their  tenets,  and  cannot,  in  my  opinion,  reflect  back  any  light 
upon  Lady  Hewley's  intentions  in  1704,  it  has  removed  the  only 
obstacle  that  could  have  intercepted  her  bounty  if  they  had  been 
originally  objects  of  it.  It  is  indeed  still  blasphemy  punishable  at 
common  law  scoffingly  or  irreverently  to  ridicule  or  impugn  the 
doctrines  of  the  Christian  faith,  and  no  one  would  be  allowed  to 
give  or  claim  any  pecuniary  encouragement  for  such  a  purpose  ;  yet 
any  man  may,  without  subjecting  himself  to  any  penal  conse- 
quences, soberly  and  reverently  examine  and  question  the  truth  of 
those  doctrines  which  have  been  assumed  as  essential  to  it.  And  I 
am  not  aware  of  any  impediment  to  the  application  of  any  chari- 
table fund  for  the  encouragement  of  such  inquiries."  Mr.  Justice 
Coleridge  said  (p.  539),  that  (in  order  to  arrive  at  the  same  con- 
clusion) it  was  "  not  necessary  to  break  in  upon  any  of  those  dicta 
by  which  Christianity  has  been  declared  parcel  of  the  common  law, 
nor  to  extend  the  operation  of  the  different  Toleration  Acts  beyond 
the  literal  meaning  of  their  language.  But  Unitarians  profess  to 
be  Christians  as  much,  and  we  doubt  not  as  sincerely,  as  Trini- 
tarians ;  and  I  apprehend  that  there  is  nothing  unlawful  at  common 
law  in  reverently  denying  doctrines  parcel  of  Christianity,  however 
fundamental.  It  would  be  difficult  to  draw  a  line  in  such  matters 
according  to  perfect  orthodoxy,  [*462]  or  to  define  how  far  one 
might  depart  from  it  in  believing  or  teaching  without  offending  the 
law.  The  only  safe  and,  as  it  seems  to  me,  practical  rule,  is  that 
which  I  have  pointed  at,  and  which  depends  on  the  sobriety  and 
reverence  and  seriousness  with  which  the  teaching  or  believing, 
however  erroneous,  are  maintained."  Baron  Parke  (at  p.  565) 
agreed  "  that  the  preaching  of  doctrines  called  Unitarian  is  not  on 
that  account  illegal  at  common  law,  and  all  the  statutory  penalties 
have  been  repealed."  Chief  Justice  Tindal  said  (at  p.  578)  : — "I 
consider  that  since  the  statute  53  Geo.  III.  c.  160,  all  distinction 
between  Unitarians  and  other  Protestant  Dissenters  as  to  this  pur- 
pose is  by  law  taken  aAvay." 

These  opinions  are,  of  course,  of  the  highest  authority,  and  have 

(422) 


OF   THE    NINETEENTH    CENTURY.  351 

been  treated  as  settling  the  law  in  all  subsequent  cases  in  which 
they  have  been  cited.  Thus  in  1846  in  Shrewsbury  v.  Hornby  (5 
Hare's  Reports,  406),  a  bequest  to  the  treasurer  of  the  Unitarian 
Association  to  assist  Unitarian  congregations  and  maintain  a  Uni- 
tarian missionary  was  upheld.  In  Be  Barnett  (29  L.  J.  ('!).  871),  a 
legacy  to  the  minister  of  Cross  Street  Chapel,  Manchester,  to  be 
applied  "  towards  the  support  of  the  Unitarians,"  was  also  upheld. 
In  Scotland,  Lord  Jeffrey,  in  an  eloquent  judgment,  gave  a  similar 
decision.  {General  Assembly  of  Baptist  Churches  v.  Taylor,  3 
Dunlop  &  Bell,  2nd  Series,  Cases  in  the  Court  of  Session,  p.  1030.) 
It  was  in  aecordance  with  these  judgments  that  it  was  held  in 
February,  1874,  in  a  Scotch  Court  that  the  Rev.  Page  Hopps's  Life 
of  Jesus,  a  Unitarian  book  written  in  a  reverent  spirit,  eonld  not 
be  pirated  with  impunity  by  an  orthodox  missionary,  who  sought 
to  justify  his  piracy  by  the  plea  that  it  was  a  blasphemous  publica- 
tion and'  therefore  incapable  of  copyright.  (See  Copinger  on 
Copyright,  2nd  edition,  p.  91.)  It  cannot  therefore  be  maintained 
that  Unitarianism  is,  or  ever  was,  blasphemous  at  common  law,  and 
it  follows  that  the  dicta  in  Woolstoii's  case  are  unreliable,  and  can- 
not  be  regarded  in  the  present  day  as  good  law  without  considerable 
qualification.  And  see  the  recital  in  the  Dissenters'  Chapels  Act, 
7  &  8  Vict.  c.  45. 

Again,  trusts  and  legacies  to  promote  the  spread  of  the  Jewish 
religion  clearly  "  strike  at  the  very  root  of  Christianity  ;  "  yet  they 
are  always  enforced  in  our  law  courts.  Formerly,  no  doubt,  it  was 
different'  In  1754  Lord  Hardwicke,  in  the  case  of  Da  Costa  v.  De 
Pas  (Ambler,  228  ;  2  Swanston,  487,  n.),  decided  on  the  express 
authority  of  B.  v.  Taylor  and  B.  v.  Woolsto?i,  that  a  bequest  of 
1,200/.  to  found  a  "Jesubaor  assembly  for  reading  the  law  and 
instructing  people  in  our  holy  religion,"  was  void,  as  being  in  "  con- 
tradiction to  the  Christian  religion,  which  is  part  of  the  law  of  the 
land."  But  [*463]  this  is  not  law  now.  By  the  statute  9  & 
10  Vict.  c.  59,  Jews  are  now  placed  on  the  same  footing  as  Protes- 
tant Dissenters,  and  all  bequests  to  promote  the  propagation  of 
Judaism  are  now  valid.  And,  indeed,  trusts  and  legacies  in  favour 
of  Jewish  synagogues  were  valid  before  this  statute,  a  distinction 
being  taken  between  an  act  of  worship  and  the  inculcation  of  anti- 
Christian  doctrine.  (Per  Abbott,  J.,  in  Lazarus  v.  Simmonds 
(1818),  3  Mer.  393,  n.) 

There  is  only  one  recent  equity  case  in  which  either  the  letter  or 
the  spirit  of  Wo olst 'on's  case  has  been  followed,  and  that  is  Briggs 
v.  Hartley  (1850),  19  L.  J.  Ch.  416.  There  a  testator  left  a  legacy 
for  the  "  best  essay  on  the  subject  of  natural  theology,  treating  it 
as  a  science,  and  demonstrating  the  truth,  harmony  and  infallibility 
of  the  evidence  on  which  it  is  founded,  and  the  perfect  accordance 
of  such  evidence  with  reason  ;  also  demonstrating  the  adequacy 
and  sufficiency  of  natural  theology  when  so  treated  and  taught  as  a 
science  to  constitute  a  true,  perfect,  and  philosophical  system  of 
universal  religion  (analogous  to  other  universal  systems  of  science, 
such  as  astronomy,  &c),  founded  on  immutable  facts  and  the  works 
of  creation,  and  beautifully  addressed  to  man's  reason  and  nature, 

(423) 


352  BLASPHEMOUS    WORDS. 

and  tending,  as  other  sciences  do,  but  in  a  higher  degree,  to  improve 
and  elevate  his  nature,  and  to  render  him  a  wise,  happy,  and  exalted 
being."  And  this  was  the  judgment  of  Vice-Chancellor  Shadwell: — 
"  I  cannot  conceive  that  the  bequest  in  the  testator's  will  is  at  all 
consistent  with  Christianity,  and  therefore  it  must  fail."  The 
editors  of  Jarman  on  Wills,  4th  edition,  p.  210,  say  "  this  case  would 
probably  not  be  followed  ;  no  cases  were  cited  in  the  argument  at 
all."  This  decision  stands  alone.  In  Thornton  v.  Howe  (1862),  31 
Beav.  14,  a  trust  for  "printing,  publishing,  and  propagating  the 
sacred  writings  of  the  late  Joanna  Southcote  "  was  held  good  by 
Romilly,  M.  R.,  and  in  Pare  v.  Clegg  (1861),  29  Beav.  589,  the 
learned  judge  held  that  there  was  nothing  illegal  or  immoral  in  a 
society  whose  chief  object  was  to  propagate  the  visionary  doctrines 
of  the  late  Robert  Owen. 

It  must,  of  course,  be  admitted  that  the  law  laid  down  by  Lord 
Coleridge  in  Ii.  v.  Ramsey  and  Foote  cannot  be  reconciled  with 
every  one  of  the  earlier  decisions.  It  is  not  to  my  mind  inconsistent 
with  P.  v.  Taylor,  but  it  is  certainly  opposed  to  the  dicta,  if  not  to 
the  decision,  in  Ii.  v.  'Woolston.  Was  then  Lord  Coleridge  bound 
by  these  dicta?  I  think  not.  It  is  in  no  way  the  duty  of  a  judge 
to  accept  all  the  dicta  of  his  predecessors  without  regard  to  the  cir- 
cumstances in  which  they  were  uttered  and  apply  them  literally  in 
a  different  age  and  in  other  circumstances.  Still  less  is  this  the 
duty  [*464]  of  a  judge  when  those  dicta  are  avowedly  based  on 
considerations  of  public  policy  which  are  now  admitted  to  be  er- 
roneous. Again,  it  must  be  admitted  that  Lord  Coleridge's  view  of 
the  law  is  entirely  opposed  to  both  the  dicta  and  the  decision  in 
the  civil  case,  Cowan  v.  Milbourn,  ante,  p.  455.  And  since  the 
summing-up  was  delivered  his  view  has  not  been  universally  ac- 
cepted by  the  Bench.  Huddleston,  B.,  wras  certainly  disposed  to 
dissent  from  it  in  Pankhurst  v.  27wmpso?i,  3  Times  L.  R.  199  ;  but 
the  case  was  settled,  so  that  it  was  unnecessary  to  deliver  any 
judgment.  And  see  Pankhurst  v.  Hamilton,  3  Times  L.  R.  500. 
And  Mr.  Justice  Stephen,  in  his  "  History  of  the  Criminal  Law  of 
England"  (vol.  ii.  p.  474),  undoubtedly  inclines  to  the  view  that 
"  the  true  legal  doctrine  upon  the  subject  is  that  blasphemy  con- 
sists in  the  character  of  the  matter  published,  and  not  in  the  manner 
in  which  it  is  stated  ; "  though  he  admits  that "  there  is  no  doubt 
some  authority  in  favour  of  a  different  view  of  the  law."  But  in  a 
former  work,  "  The  Digest  of  Criminal  Law  "  (p.  97),  Mr.  Justice 
Stephen  placed  his  present  definition  of  the  law  and  that  given  by 
Lord  Coleridge  in  parallel  columns  as  equally  good  law,  adding  in 
a  note,  "  There  is  authority  for  each  of  these  views  ;  most  of  the 
cases  are  old,  and  I  do  not  think  that,  in  fact,  any  one  has  been 
convicted  of  blasphemy  in  modern  times  for  a  mere  decent  expres- 
sion of  disbelief  in  Christianity." 

Those  who  wish  to  pursue  this  inquiry  further  are  referred  to  an 
article  by  Mr.  Justice  Stephen  in  the  "  Fortnightly  Review  "  for 
March,  1884,  and  to  a  pamphlet  by  Mr.  Aspland,  Q.C.  (Stevens  and 
Haynes,  188  t),  in  which  the  views  expressed  in  that  article  are 
candidly  examined.     In  conclusion  I  may  say  that  I  have  stated  the 

(424) 


STATUTES.  353 

law  laid  down  in  Shore  v.  Wilson  and  R.  v.  Ramsey  arid  Foote 
at  the  beginning  of  this  chapter  as  the  existing  law  of  blasphemy, 
not  only  because  it  appears  to  me  to  be  "  the  better  opinion  "  in  point 
of  law, "but  also  because  it,  is,  I  am  sure,  the  only  law  on  the  subject 
that  it  is  possible  to  enforce  in  the  present  day,  the  only  law  which 
is  at  all  consonant  with  our  modern  ideas  of  universal  toleration  and 
religious  equality. 

In  aid  of  the  common  law,  many  statutes  have  at  different  times 
been  passed  to  punish  particular  species  of  blasphemy.  Of  these 
the  following  appear  to  be  still  unrepealed  : — 

"Whatsoever  person  or  persons  shall  deprave,  despise,  [*465]  or 
contemn  the  most  blessed  Sacrament  in  contempt  thereof  by  any 
contemptuous  words  or  by  any  words  of  depraving,  despising,  or 
reviling,  or  what  person  or  persons  shall  advisedly  in  any  other  wise 
contemn,  despise,  or  revile  the  said  most  blessed  Sacrament,  shall 
suffer  imprisonment  of  his  or  their  bodies  and  make  fine  and  ran- 
dom at  the  king's  will  and  pleasure."     (1  Edw.  VI.  c.  1,  s.  1.) 

"  Any  vicar  or  other  minister  whatsoever  that  shall  preach, 
declare,  or  speak  anything  in  the  derogation  or  depraving  of  the 
Book  of  Common  Prayer,  or  anything  therein  contained,  or  of  any 
part  thereof,"  shall  on  conviction  for  the  first  offence  suffer  forfeit- 
ure of  one  year's  profit  of  benefices  and  six  months'  imprisonment, 
and  for  the  second  offence,  one  year's  imprisonment  and  deprivation, 
and  for  the  third  offence,  deprivation  and  imprisonment  for  life  :  or, 
if  not  beneficed,  for  the  first  offence  imprisonment  for  one  year,  and 
for  the  second  offence  imprisonment  for  life.  2  &  3  Edw.  VI.  c.  1., 
s.  2  ;   1  Eliz.  c.  2,  s.  2.) 

Any  person  whatsoever,  lay  or  clerical,  who  "  shall  in  any  inter- 
ludes, plays,  songs,  rhymes,  or  by  other  open  words,  declare  or 
speak  anything  in  the  derogation,  depraving,  or  despising  of  the 
same  book,  or  of  anything  therein  contained,  or  any  part  thereof," 
shall  for  the  first  offence  forfeit  one  hundred  marks,  for  the  second 
offence  four  hundred  marks,  and  for  the  third  offence  shall  forfeit 
all  his  goods  and  chattels  to  the  Queen  and  be  imprisoned  for  life. 
(2  &  3  Edw.  VI.  c.  1,  s.  3  ;  and  1  Eliz.  c.  2,  s.  3.) 

These  provisions  are  applied  to  our  present  Book  of  Common 
Prayer  by  the  14  Car.  II.  c.  4,  s.  1. 

Every  "person  ecclesiastical,  who  shall  persist  in  maintaining  or 
affirming  any  doctrine  directly  contrary  or  repugnant  to  any  of  the 
Articles"  agreed  on  in  the  Convocation  holden  at  London  in  1562, 
shall  be  deprived  of  his  living.     (13  Eliz.  c.  12,  s.  2.) 

[*466]  The  statute  3  Jac.  I.  c.  21,  as  to  players,  was  repealed  in 
1843  by  the  6  &  7  Vict.  c.  68,  s.  1. 

"  If  any  person,  having  been  educated  in,  or  at  any  time  having 
made  profession  of,  the  Christian  religion  within  this  realm,  shall 
by  writing,  printing,  teaching,  or  advised  speaking,  assert  or  main- 
tain that  there  are  more  Gods  than  one,  or  shall  deny  the  Christian 
religion  to  be  true,  or  the  Holy  Scriptures  of  the  Old  and  New  Tes- 
tament to  be  of  divine  authority,"  he  shall,  on  conviction  by  the 
oath  of  two  or  more  credible  witnesses,  be  deprived  of  all  offices* 
23  lib.  &  slan.  (425) 


354  BLASPHEMOUS    WORDS. 

civil,  ecclesiastical,  and  military,  unless  he  renounce  his  errors 
within  four  months  from  the  date  of  his  conviction  ;  and  for  a  second 
offence  he  shall  he  declared  unahlc  to  sue  in  any  court  of  law  or 
equity,  to  he  a  guardian,  an  executor  or  administrator,  to  take  any 
legacy,  or  to  hold  any  office,  and  shall  also  suffer  imprisonment  for 
three  years.  But  information  must  be  given  on  oath  to  a  magis- 
trate within  four  days  after  such  words  were  spoken,  and  the  pros- 
ecution must  be  within  three  months  after  such  information.  (9 
Will.  III.  c.  35  [c.  32  in  the  Statutes  at  Large],  as  amended  by  53 
Geo.  III.  c.  160.) 

I  bit  this  statute  does  not  affect  or  alter  the  common  law  (/?. 
v.  Carlile,  3  B.  &  Aid.  161  ;  JR.  v.  Williams,  26  Howell's  St.  Tr. 
656)  ;  nor  would  its  repeal.  {Ii.  v.  Waddington,  1  B.  &  C.  26  ; 
Att.-Gen.  v.  Pearson,  3  Mer.  at  pp.  399,  405,  407.) 

This  Act  appears  to  be  directed  rather  against  apostasy  than 
blasphemy.  So  far  as  I  am  aware,  there  has  never  been  a  single 
prosecution  under  it,  partly,  perhaps,  from  the  difficulty  there  would 
be  in  proving  that  the  person  accused  had  been  educated  in,  or  made 
profession  of,  the  Christian  religion  ;  partly,  perhaps,  because  the 
punishment  for  a  first  offence  is  so  slight.  "Advised  speaking" 
probably  means  words  spoken  deliberately,  as  opposed  to  "  a  casual 
expression  dropped  inadvertently."  (See  Under  v.  Heath,  15 
Moore,  P.'C.  C.  80  ;  Brodrick  &  Fremantle,  at  p.  234.) 

By  the  Burial  Laws  Amendment  Act,  1880  (43  &  44  [*467] 
Vict.  c.  41,  s.  7,  any  person  who  shall  at  any  burial  under  the  Act, 
"  under  colour  of  any  religious  service  or  otherwise,  in  any  church- 
yard or  graveyard,  wilfully  endeavour  to  bring  into  contempt  or 
obloquy  the  Christian  religion,  or  the  belief  or  worship  of  any 
church  or  denomination  of  Christians,  or  the  members  or  any 
minister  of  any  such  church  or  denomination,  or  any  other  person, 
shall  be  guilty  of  a  misdemeanoi'." 

Such,  then,  is  the  existing  law  as  to  blasphemy.  It  is  not,  I 
think,  so  harsh  and  illiberal  as  some  have  imagined.  If  Lord  Cole- 
ridge and  the  judges  in  Shore  v.  Wilson  are  right,  it  does  not  place 
any  barrier  in  the  way  of  the  freest  inquiry  or  of  the  largest  intel- 
lectual or  spiritual  progress.  It  permits  the  frankest  avowal  and 
the  warmest  advocacy  of  all  opinions,  however  hei-etical,  which  the 
writer  or  speaker  sincerely  entertains.  It  only  interferes  where 
our  religious  feelings  are  insulted  and  outraged  by  wanton  and 
unnecessary  profanity. 

I  venture  however  to  add  some  observations  on  the  question, 
much  discussed  of  late,  whether  the  existing  law  should  be  amended, 
and,  if  so,  in  what  direction  and  to  what  extent. 

In  the  first  place,  every  one  will  agree  that  the  present  difference 
of  opinion  among  our  judges  as  to  what  precisely  is  the  law  on  the 
point  should  at  once  be  set  at  rest.  Probably  most  will  also  agree  that 
all  the  statutes  just  recited  (except  the  Burial  Acts  Amendment 
Act)  should  be  repealed  forthwith.     These  objects  will  be  attained 

(426) 


AMENDMENT    OF    TUE    LAW.  355 

when  the  excellent  Bill  brought  in  by  Mr.  Courtney  Kenny  becomes 
law.  The  text  will  be  found  in  Appendix  C, post,  p.  705.  It  will 
be  observed  that  the  concluding  proviso  is  moulded  on  Article  298 

of  the  Indian  Penal  Code,  which  runs  as  follows  : — 

"Whoever,  with  the  deliberate  intention  of  wounding  the 
religious  feelings  of  any  person,  utters  any  words,  or  makes  any 
sound  in  the  hearing  of  that  person,  or  makes  any  gesture  in  the 
sight  of  that  person,  or  places  any  object  in  thesightof  that  person, 
shall  be  punished  with  imprisonment  of  either  description  for  a 
term  which  may  extend  to  one  year,  or  with  tine  or  with  both." 

But  there  is  another  Hill,  which,  though  sadly  neglected,  is  still, 
I  suppose,  in  some  form  or  other  before  Parliament.  I  refer  to  the 
Criminal  Code  Bill,  the  141st  section  of  which  is  as  follows  : — 

"  Every  one  shall  be  guilty  of  an  indictable  offence,  and  shall  be 
liable  upon  conviction  thereof  to  one  year's  imprisonment,  who 
publishes  any  blasphemous  libel. 

[*  468]  It  shall  be  a  question  of  fact  whether  any  particular 
published  matter  is  or  is  not  a  blasphemous  libel :  Provided  that  no 
one  shall  be  liable  to  be  convicted  upon  any  indictment  for  a 
blasphemous  libel  only  for  expressing  in  good  faith  and  in  decent 
language,  or  attempting  to  establish  by  arguments  used  in  good 
faith  and  conveyed  in  decent  language,  any  opinion  whatever  upon 
any  religious  subject." 

The  framers  of  the  Code  apparently  intend  to  abolish  the  crime 
of  oral  blasphemy,  as  the  section  is  confined  to  published  libels,  thus 
exempting  all  spoken  lectures  and  addresses,  however  offensive, 
from  the  scope  of  the  criminal  law.  I  doubt  if  there  is  any  sufficient 
reason  for  this  change.  The  subsequent  proviso  should  of  course  be 
extended  to  protect  all  words  used  in  serious  discussion,  and 
intended  to  make  known  and  to  recommend  opinions  which  the 
speaker  conscientiously  entertains.  But  if  a  lecturer  deliberately 
chooses  to  shock  his  audience  by  using  profane  language  when  it  is 
not  necessary  for  purposes  of  serious  discussion,  or  for  the  advocacy 
of  opinions  which  he  conscientiously  entertains,  then  I  do  not  see 
that  he  deserves  protection.  However,  the  proposed  alteration  is 
but  a  slight  one,  as  only  one  man,  so  far  as  I  am  aware,  had  been 
convicted  of  oral  blasphemy  since  1676,  and  that  was  George  Jacob 
Holyoake  in  1842. 

It  has  been  also  objected  to  this  clause  in  the  Criminal  Code  Bill, 
that  it  gives  no  definition  of  a  "  blasphemous  libel."  It  will  be 
observed,  however,  that  an  express  proviso  has  been  added  to  set  at 
rest  for  ever  the  doubt  felt  by  Mr.  Justice  Stephen,  and  I  think 
that  this  proviso,  explaining  what  is  not  blasphemy,  is  to  some 
extent  a  definition.  As  to  the  word  "  libel,"  it  is  practically 
impossible  to  define  it,  and  it  is  undesirable  therefore  to  make  the 
attempt.  A  jury  generally  has  no  difficulty  in  deciding  whether  a 
given  publication  is  or  is  not  a  libel  ;  but  the  malice  of  mankind 
takes  such  various  forms  that  any  definition,  however  carefully 
worded  (unless  it  were  confined  to  vague  but  safe  generalities), 
would  be  apt  to  exclude  some  cases  which  deserve  punishment,  while 
it  included  others  which  should  have  passed  uncondemned. 

(427) 


356  BLASPHEMOUS    WORDS. 

This  brings  us  to  a  further  objection.  The  Criminal  Code  Bill 
will,  it  is  said,  "  virtually  leave  the  whole  question  to  the  jury," 
whereas  it  is  better  that  "  sueh  outrages  and  insults  to  religious 
feelings  as  really  merit  punishment  should  be  dealt  with  summarily 
by  a  magistrate,  that  procedure  being  preferable  to  the  preliminaries 
and  prolonged  publicity  of  a  jury  trial,  which  at  best  serves  to 
advertise  rather  than  suppress  what  is  truly  obnoxious."  But  this 
objection  will  not,  I  think,  commend  itself  to  those  best  acquainted 
with  our  county  and  borough  magistrates.  It  is  contrary  to  all  the 
[*469j  traditions  of  our  law.  Over  and  over  again  it  has  been  laid 
down  that  "  libel  or  no  libel  is  pre-eminently  a  question  for  a  jury." 
"The  jury,"  says  Mr.  Justice  (jiow  Lord)  Fitzgerald,  in  Jl.  v.  Sullivan, 
11  Cox,  C.  C.  50,  "'are  true  guardians  of  the  liberty  of  the  press." 
No  doubt  it  may  sometimes  be  a  work  of  nicety  to  draw  the  line 
between  liberty  and  licence,  to  distinguish  the  honest  advocacy  of 
heterodox  opinions  from  malicious  and  wanton  profanity.  But,  as 
the  Lord  Chief  Justice  remarks,  the  difference  is  one,  not  of  degree 
but  of  kind.  In  every  action  for  defamation  where  "privilege "is 
pleaded,  or  a  question  of  "  bond  fide  comment  "  arises,  the  jury  has 
a  precisely  similar  duty  to  perform,  and,  as  a  rule,  performs  that 
duty  admirably.  There  can  be  no  doubt  but  that  questions  such  as 
these  are  best  left  to  the  common  sense  of  an  ordinary  British  jury. 
Proceedings  before  justices,  moreover,  attain  in  the  present  day  as 
much  publicity  as  trials  by  jury  ;  I  should  be  sorry  if  it  were  other- 
wise. 

But  there  are  some  who  are  satisfied  neither  with  the  proposals 
contained  in  the  English  Criminal  Code  Bill,  nor  with  the  provisions 
of  Mr.  Courtney  Kenny's  Bill  for  the  abolition  of  prosecutions 
against  laymen  for  the  expression  of  opinion  on  matters  of  religion. 
They  make  a  third  suggestion,  and  that  is  to  abolish  the  law  relating 
to  blasphemy  altogether.  They  maintain  that  prosecutions  for 
blasphemy  do  more  harm  than  good  ;  that  they  create  a  false  sym- 
pathy with  the  offenders,  and  bring  Christianity  itself  into  hatred 
and  contempt  ;  that  it  is  impossible  to  protect  the  religious  feelings 
of  all  classes  from  insult  and  outrage  :  and  that  the  true  Christian 
would  punish  those  who  thus  offended  with  contempt  and  scorn;  but 
not  by  criminal  proceedings,  which  only  serve  to  advertise  and  bring 
into  prominence  the  books  condemned. 

I  feel  there  is  much  force  in  this  argument.  But  at  the  same  time 
I  mistrust  all  propositions  to  abolish  anything  entirely.  It  is  so  easy. 
It  saves  all  the  trouble  of  sifting  out  what  is  good  from  what  is  bad. 
There  is  generally  something  worth  preserving  in  all  our  English 
institutions,  though  it  maybe  thickly  overlaid  with  an  accumulation 
of  antiquated  abuses.  Is  there  nothing  good,  then,  in  our  law  as  to 
Ilasphemy  ?  Is  it  a  good  or  an  evil  thing  that  men  should  be  re- 
strained from  exhibiting  in  the  public  streets  and  in  shop  windows 
blasphemous  pictures  of  the  life  of  Christ,  and  other  offensive  cari- 
catures such  as  appeared  in  the  illustrated  Christmas  number  of  the 
Freethinker  for  1882  ?  Why  is  it  more  unchristian  to  prosecute 
those  who  engraved  and  published  these  pictures,  than  to  prosecute 
a  man  for  perjury  or  for  an  assault  ?     Such  a  caricature  is  no  argu- 

(428) 


AMENDMENT    OF    THE    LAW.  357 

[*470]  raent;  it  is  simply  a  gratuitous  insult  to  the  religious  feelings 
of  the  immense  majority  of  us.  It  did  no  one  any  good.  It  cer- 
tainly did  harm  to  thousands  of  young  people,  who  gazed  at  it  when 
exhibited  in  shop-windows  in  the  public  Streets,  whilst  it  must  have 
pained  and  wounded  ten  thousand  more.  Yet  if  the  whole  of  our 
law  against  blasphemy  were  abolished,  there  would  be  nothing  to 
prevent  or  prohibit  such  an  exhibition. 

Our  religious  emotions  surely  demand  from  the  law  as  much  pro- 
tection as  our  moral  sense.  It  appears  to  me  thai  there  must  and 
ought  to  be  some  law  in  force  which  will  restrain  the  unnecessary 
exhibition  of  gross  and  offensive  caricatures  of  holy  things,  and  will 
prohibit  outrages  upon  our  best  and  highest  feelings.  What  good 
can  such  publications  do  ?  Do  they  in  any  way  advance  the  cause 
of  truth  ?  Is  any  one  the  wiser,  or  the  better,  or  the  happier,  for 
having  seen  or  read  them  ?  I  trust  I  yield  to  no  one  in  my  desire 
for  the  freest  and  fullest  religious  liberty.  I  would  abolish  every 
obstacle  to  the  honest  search  after  truth.  Let  light  be  thrown  on 
every  question ;  let  all  matters,  however  sacred,  be  canvassed  in  the 
unfettered  freedom  of  genuine  and  earnest  discussion;  let  every 
man  hold  and  teach  whatever  religious  opinions  he  may  conscien- 
tiously adopt.  But  the  amplest  measure  of  religious  liberty  is  wholly 
compatible  with,  nay,  it  conduces  to  promote,  a  spirit  of  profound 
reverence  for  sacred  things.  Whatever  tends  to  weaken  or  diminish 
this  spirit  is  an  injury  to  the  community.  And  I  hold,  therefore,  that 
it  is  the  duty  of  ou/legislators,  while,  on  the  one  hand,  they  protect 
and  encourage  all  serious  and  reverent  controversy  on  religious 
matters,  yet,  on  the  other  hand,  to  make  adequate  provision  for 
the  prevention  of  blasphemous  libels  which  give  wanton  and  unnec- 
essary offence  to  the  highest  and  noblest  instincts  of  our  nature. 


C429) 


CHAPTER  XVII.  t*4"l 

OBSCENE  WORDS. 

It  is  a  misdemeanour  punishable  by  indictment  and  by  information 
to  publish  obscene  and  immoral  books  and  pictures  ;  for  such  an 
act  is  destructive  of  the  public  morality  and  welfare,  though  it  may 
not  reflect  on  any  particular  person,  and  as  such  it  is  punishable  at 
common  law  (It  v.  Curl,  2  Strange,  788  ;  1  Barnard.  29,  ante,  p. 
454). 

The  test  of  obscenity  is  this  : — "  Whether  the  tendency  of  the 
matter  charged  as  obscenity  is  to  deprave  and  corrupt  those  whose 
minds  are  open  to  such  immoral  influences,  and  into  whose  hands  a 
publication  of  this  sort  may  fall."  (Per  Cockburn,  C.  J.,  in  R.  v. 
HlckUn,  L.  R.  3  Q.  B.  371  ;  37  L.  J.  M.  C.  89  ;  16  W.  R.  801  ; 
18  L.  T.  395  ;   11  Cox,  C.  C.  19.) 

Similarly  it  is  a  crime  to  speak  vicious  and  immoral  words,  pro- 
vided they  be  uttered  before  a  large  assembly,  so  as  to  affect  the 
mass  of  society  ;  for  else  there  is  no  detriment  to  the  general 
public. 

Obscene  words  and  libels  are  apparently  within  the  jurisdiction 
of  Courts  of  Quarter  Sessions  ;  not  being  excepted  by  the  5  &  6 
Vict.  c.  38. 

The  punishment  may  be  either  fine  or  imprisonment  for  a  term 

of  any  length,  and  either  with  or  without  hard  labour.     (14  &  15 

Vict.  c.  100,  s.  29.) 

Illustrations. 

Wilkes  was  fined  £500  and  imprisoned  for  a  year  for  printing  and  publishing 
"  An  Essay  on  Woman." 

R  v.  John  Wilkes,  4  Burr.  2527  ;  2  Wils.  151  ;  Dig.  L.  L.  69. 
r*4721  Actors  have  been  prosecuted  for  performing  obscene  plays. 

Tremayne's  Entries,  209,  213,  214,  215  ;  Str.  790. 
The  obscene  words  must  be  set  out  in  the  indictment  verbatim. 

BracUaugh  &  Besant  v.  The  Queen  (C.  A.)  3  Q.  B.  D.  607  ;  48  L.  J. 

(M.  C)  5  ;  26  W.  R.  410  ;  38  L.  T.  118  ;  14  Cox,  C.  C.  68- 

An  information  was  granted  against  the  printer  of  a  newspaper  called  "  The 

Daily  Advertiser,  Oracle  and  True  Briton,"  for  publishing  an  advertisement 

by  a  young  married  woman  offering  to  become  anybody's  mistress  on  certain 

pecuniary  terms. 

R.  v.  Stuart,  3  Chit.  Crim.  L.  887. 
Where  an  officer  of  the  Society  for  the  Suppression  of  Vice  purposely  went 
to  the  prisoner's  shop  and  asked  to  see  some  indecent  prints,  and  was  shown 
several  by  the  prisoner  in  a  back  room,  of  which  he  bought  two  in  order  to 
found  a  prosecution  thereon,  this  was  held  a  sufficient  publication  to  sustain 
the  charge. 

R.  v.  Carlile,  1  Cox,  C.  C.  229. 

"  Obtaining  and  procuring  "obscene  works  for  the  purpose  of  utter- 
ing and  selling  them  is  a  misdemeanour  indictable  at  common  law  ; 

C430) 


OBSCENE    WORDS.  -'559 

for  it  is  an  overt  act  taken  in  pursuance  of  an  unlawful  intention  : 
but  merely  "preserving  and  keeping  them  in  one's  possession"  for 
the  same  purpose  is  not  indictable  ;  for  "there  is  no  act  shown  to 
be  done  which  can  be  considered  as  the  first  step  in  the  prosecution 
of  a  misdemeanour."  t  Per  Lord  Campbell,  C.  J.,  in  JDvgdale  v. 
Beg.,  Dears.  C.  C.  64  ;  1  E.  &  B.  425  ;  22  L.  J.  M.  ( !.  50  ;  17  Jur. 
546  ;  and  per  Park,  J.,  in  B.  v.  Bosenstein,  2  ('.  &  P.  414.) 

By  the  20  &  21  Vict.  c.  83,  if  any  one  reasonably  believes  that 
any  obscene  books,  or  pictures,  arc  kept  in  any  place  for  the  pur- 
pose of  being  sold  or  exhibited  for  gain,  he  may  make  a  complaint 
on  oath  before  the  police  magistrate,  stipendiary  magistrate,  or  any 
two  justices,  having  jurisdiction  over  such  place.  The  magistrate 
or  justices  must  be  satisfied  : — 

(i.)  That  such  belief  is  well  founded  :  and  for  that  purpose  the 
complainant  must  also  state  on  oath  that  at  least  one  such  book  or 
picture  has  in  fact  been  sold  or  exhibited  for  gain  in  such  place. 

(ii.)  That  such  book  or  picture  is  so  obscene  that  its  publication 
would  be  a  misdemeanour. 

[*473]  (iii.)  That  such  publication  would  be  a  misdemeanour 
prope.  co  be  prosecuted  as  such. 

Thereupon  the  magistrate  or  justice  issues  a  special  warrant 
authorizing  their  officer  to  search  for  and  seize  all  such  books  and 
pictures,  and  bring  them  into  Court  ;  and  then  a  summons  is  issued 
calling  upon  the  occupier  of  the  place  to  appear  and  show  cause 
why  such  books  and  pictures  should  not  be  destroyed.  Either  the 
owner,  or  any  other  person  claiming  to  be  the  owner,  of  such  books 
and  pictures  may  appear  :  but  if  no  one  appears,  or  if  in  spite  of 
appearance  the  justices  are  still  satisfied  that  the  books  and  pictures, 
or  any  of  them,  are  of  such  a  character  that  their  publication  would 
be  a  misdemeanour  proper  to  be  prosecuted,  they  must  order  them 
to  be  destroyed  ;  if  not  so  satisfied,  they  must  order  them  to  be 
restored  to  the  occupier  of  the  place  in  which  they  were  seized. 
The  order  for  the  destruction  of  such  books  must  state,  not  only 
that  the  magistrate  is  satisfied  that  the  books  are  obscene,  but  also 
that  he  is  satisfied  that  the  publication  of  them  would  be  a  misde- 
meanour, and  proper  to  be  prosecuted  as  such  :  else  such  order  will 
be  bad  on  the  face  of  it,  as  not  showing  that  the  magistrate  had 
jurisdiction  to  make  it,  and  a  certiorari  will  be  granted,  in  spite  of 
the  2  &  3  Vict.  c.  71,  s.  49,  to  bring  it  up  and  quash  it.  (Ex  Parte 
Bradlaugh,  3  Q.  B.  D.  509  ;  47  L.  J.  M.  C.  105  ;  26  W.  R.  758  ; 
38  L.  T.  680.) 

Any  person  aggrieved  by  the  determination  of  the  justices  may 
appeal  to  Quarter  Sessions  by  giving  notice  in  writing  of  such 
appeal,  and  of  the  grounds  thereof,  and  entering  into  a  recognizance 
within  seven  days  after  such  determination.  Hence  the  books  and 
pictures  ordered  to  be  destroyed  will  only  be  impounded  during 
such  seven  days  ;  on  the  eighth  day,  if  no  notice  of  appeal  be  given, 
they  will  be  destroyed.  If  the  appeal  be  dismissed,  or  not  prose- 
cuted, the  Court  of  Quarter  Sessions  may  order  the  books  and 
pictures  to  destroyed.  (See  the  Act  in  extenso  in  Appendix  D., 
post,  p.  722.)     The* death  of  the  [*4V4]  complainant  after  the  issuing 

(431) 


300  OBSCENE    WORDS. 

of  the  summons  will  not  cause  the  proceedings  to  lapse.  (H.  v. 
Truelove,  5  Q.  B.  D.  336  ;  49  L.  J.  M.  C.  57*;  28  W.  R.  413  ;  42 
L.  T.  250  ;   14  Cox,  C.  C.  480.) 

If  the  work  be  in  itself  obscene,  its  publication  is  an  indictable 
misdemeanour,  and  the  work  may  be  seized  under  this  Act,  how- 
ever innocent  may  be  the  motive  of  the  publisher.  (11.  v.  fficklin, 
L.  R.  3  Q.  B.  371  ;  37  L.  J.  M.  C.  89  ;  10  W.  R.  801  ;  18  L.  T. 
398  ;  11  Cox,  C  C.  19.) 

If  any  point  of  law  arises  under  this  Act,  the  magistrates  or 
justices  may  state  a  case  for  the  opinion  of  a  Superior  Court,  under 
the  20  &  21  Vict.  c.  43,  irrespective  of  the  power  of  appeal  given 
by  sect.  4.  That  the  libel  is  an  accurate  report  of  a  judicial  pro- 
ceeding is  no  defence,  if  it  contain  matter  of  an  obscene  and 
demoralizing  character.  (Steele  v.  Brannan,  L.  R.  7  C.  P.  201  ;  41 
L.  J.  M.  CM  ;  20  W.  R.  007  ,•  20  L.  T.  509.) 

Any  one  who  openly  exposes  or  exhibits  any  indecent  exhibition 
or  obscene  prints  or  pictures  in  any  street,  road,  public  place  or 
highway,  or  in  any  window  or. other  part  of  any  house  situate  in 
any  street,  road,  public  place  or  highway,  shall  be  deemed  a  rogue 
and  vagabond,  and  punished  on  summary  conviction.  (5  Geo.  IV. 
c.  83,  s.  4,  as  explained  by  the  1  &  2  Vict.  c.  38,  s.  2.  See  post,  pp. 
713,  714.)    The  3  Geo.  IV.  c.  40,  s.  3,  is  repealed. 

By  the  33  &  34  Vict.  c.  79,  s.  20,  the  postmaster-general  may 
prevent  the  delivery  by  post  of  any  obscene  or  indecent  prints, 
photographs,  or  books. 

Illustrations. 

The  Protestant  Electoral  Union  published  a  book,  called  "  The  Confessional 
Unmasked,"  intended  to  expose  the  abuses  of  the  Roman  Catholic  discipline, 
and  to  promote  the  spread  of  the  Protestant  religion.  But  however  praise- 
worthy such  a  motive  may  be  thought,  many  passages  in  the  book  were  neces- 
sarily obscene,  and  it  was  seized  and  condemned  as  an  obscene  libel. 

It.  v.  Hicklin,  L.  R.  3  Q.  B.   360  ;  37  L.   J.  M.  C.  89  ;  16  W.  R. 
801  ;  18  L.  T.  395  ;  11  Cox,  C.  C.  19. 

1*475]  The  Protestant  Electoral  Union  thereupon  issued  an  expurgated 
edition  of  "  The  Confessional  Unmasked,"  with  some  new  matter.  For  selling 
this  George  Mackey  was  tried  at  the  Winchester  Quarter  Sessions  on  October 
19th,  1870,  when  the  jury,  being  unable  to  agree  as  to  the  obscenity  of  the  book, 
were  discharged  without  giving  any  verdict.  The  Union  thereupon  published 
"  A  Report  of  the  Trial  of  George  Mackey,"  in  which  they  set  out  the  full  text 
of  the  second  edition  of  "  The  Confessional  Unmasked  ; "  although  it  had  not 
been  read  in  open  Court,  but  only  taken  as  read,  and  certain  passages  in  it 
referred  to.  A  police  magistrate  thereupon  ordered  all  copies  of  this  "  Report 
of  the  Trial  of  George  Mackey  "  to  be  seized  and  destroyed  as  obscene  books. 
Held,  that  this  decision  was  correct. 

Steele  v.  Brannan,  L.  R.  7  C.  P.  261 ;  47  L.  J.  M.  C.  85  ;  20  W.  R. 
607  ;  20  L.  T.  509. 


(432) 


l*4?6i  CHAPTER  XVIII. 

SEDITIOUS     WORDS. 

Seditious  words  may  be  defined  generally  in  the  words  GO  Geo.  III. 
&  1  Geo.  IV.  c.  8,  s.  1,  as  any  words  which  tend  "to  bring  into 
hatred  or  contempt  the  person  of  his  Majesty,  his  heirs  or  successors, 
or  the  Regent,  or  the  government  and  constitution  of  the  United 
Kingdom  as  by  law  established,  or  either  House  of  Parliament,  or  to 
excite  his  Majesty's  subjects  to  attempt  the  alteration  of  any  matter 
in  Church  or  State  as  by  law  established,  otherwise  than  by  lawful 
means." 

Seditious  words  may  in  some  special  cases  amount  to  Treason 
or  to  Treason-felony.     This  chapter  will,  therefore,  be  divided  into 

I. —  Treasonable    Words. 

(i.)  Words  merely  spoken. 

(ii.)  Words  written  or  printed  but  not  published, 
(iii.)  Words  written  or  printed  and  published. 

II. — Seditious    Words. 

(i.)  Words  defamatory  of  the  Sovereign  himself, 
(ii.)  Words  defamatory  of  the  King's  Ministers  and  Government, 
(iii.)  Words  defamatory  of  the   Constitution   and    of  our  Laws 
generally. 
[*4V7]     (iv.)   Words  defamatory  of  either  House  of  Parliament,  or 
of  the  members  thereof, 
(v.)  Words  defamatory  of  Courts  of  Justice,  and  of  the  Judges 
thereof. 

(a)  Superior  Courts. 

(b)  Inferior  Courts. 

I. — Treason  and   Treason-Felony. 

(i.)  Words  merely  spoken  against  the  king  or  his  ministers  cannot 
amount  to  treason.  It  was  resolved  in  Hugh  Pine's  Case,  Cro.  Car. 
117  (overruling  several  arbitrary  decisions  of  earlier  date),  "that, 
unless  it  were  by  some  particular  statute,  no  words  will  be  treason."  * 

*  The  story  so  frequently  repeated  that  in  the  reign  of  Edward  IV.,  Thomas 
Burdett  was  convicted  of  high  treason  for  saying  that  he  wished  the  horns  of  his 
stag  in  the  belly  of  him  who  had  advised  the*  king  to  shoot  it  (though  it  is  still 
to  be  found  in  Blackstone,  vol.  iv.  c.  6),  has  "been  proved  by  Hallam  to  be 
mythical.  The  charge  against  Burdett  was  of  a  much  more  serious  nature  ;  and 
these  idle  words  of  his  are  not  anywhere  alluded  to  in  the  indictment  against 
him.     ("  Middle  Ages,"  c.  viii.  ad  fin.) 

(433j 


362  TREASONABLE    WORDS. 

There  is  no  such  statute  ;  but  by  sect.  3  of  the  11  &  12  Vict.  c.  12, 
to  express,  utter,  and  declare,  by  open,  and  advised  speaking,  certain 
traitorous  compassings,  imaginations,  inventions,  devices,  or  inten- 
tions, is  made  treason-felony.  (See  the  section  in  Appendix.  The 
words  in  italics  were  not  in  the  earlier  statutes  to  the  same  effect ; 
see  ante,  p.  466,  as  to  their  meaning-.)    • 

But  words  accompanying  any  act  may  be  given  in  evidence  to 
explain  the  intention  with  which  the  act  is  done. 

(ii)  Words  written  or  printed,  but  not  published,  cannot  be  treason 
at  common  law  ;  and  they  do  not  constitute  an  overt  act  of  treason 
within  the  meaning  of  the  25  Edw.  III.  c.  2.  The  decisions  to  the 
contrary  in  B.  v.  Peacham  (1615),  Cro.  Car.  125,  2  Cobbett's  St.  Tr. 
870,  and  B.  v.  Algernon  Sidney,  (1683),  9  St.  Tr.  889,  893,  were 
reversed  by  a  private  Act  of  Parliament  in  1619.  (See  Hallam's 
[*478]  Const.  Hist.  I.  467.)  But  by  the  6  Anne,  c.  7  (al.  41), 
s.  1  (passed  in  1707,  probably  in  consequence  of  a  libel  called 
"Mercurius  Politicus  ;"  see  11.  v.  Brown,  Holt,  425  ;  11  Mod.  86  ; 
post,  p.  487),  "maliciously,  advisedly  and  directly,  by  writing  or 
printing,  to  maintain  and  affirm,"  that  Queen  Anne  was  not  the  right- 
ful Queen,  that  the  Pretender  or  any  one  else,  except  the  descendants 
of  the  Electress  Sophia,  had  any  right  or  title  to  the  Crown,  or 
that  Act  of  Parliament  could  not  bind  the  Crown,  and  limit  the 
descent  thereof,  was  made  high  treason  ;  and  it  does  not  appear  that 
any  publication  is  requisite  to  complete  the  offence  created  by  this 
statute. 

(iii.)  But  a  writing  which  imports  a  compassing  the  king's  death 
within  the  meaning  of  25  Edw.  III.  c.  2,  will  amount  to  an  overt  act 
of  treason,  if  it  be  published. 

Illustration. 

Williams,  a  barrister  of  the  Middle  Temple,  wrote  two  books,  "  Balaam's  Ass  " 
and  the  "  Speculum  Regale,"  in  which  he  predicted  that  King  James  I.*  would 
die  in  the  year  1621.  He  was  indicted  for  high  treason,  convicted,  and  exe- 
cuted. 

Ii.  v.  Williams,  2  Rolle  R.  88. 

By  the  36  Geo.  III.  c.  7,  made  perpetual  by  the  57  Geo.  III.  c.  6 
(as  amended  by  11  &  12  Vict.  c.  12,  s.  1),  to  compass,  devise,  or 
intend  death  or  wounding,  imprisonment,  or  bodily  harm  to  the  per- 
son of  the  Sovereign,  and  such  compassing,  device  or  intention  to 
express,  utter,  or  declare,  by  publishing  any  printing  or  writing,  or 
by  any  overt  act  or  deed,  is  made  high  treason,  punishable  with 
death. 

And  by  the  11  &  12  Vict.  c.  12,  s.  3,  to  compass,  devise,  and  intend 
to  depose  the  Queen,  or  to  levy  war  against  her  by  force  or  con- 
straint to  compel  her  to  change  her  counsels,  or  to  intimidate  either 
House  of  Parliament,  or  to  stir  up  any  foreigner  or  stranger  with 
force  to  invade  any  of  her  dominions  ;  and  such  compassings, 
devices,  or  intentions,  or  any  of  them,  to  express,  [*479]  utter,  or 
declare,  by  publishing  any  printing  or  writing,  or  by  open  and 
advised  speaking,  or  by  any  overt  act  or  deed,  is  made  treason-fel- 

(434) 


SEDITION.  363 

ony,  punishable  with  transportation  (now  penal  servitude)  for  life. 
(See  the  section  in  Appendix.) 

II. — Sedition. 

It  is  a  misdemeanour,  punishable  by  indictment  or  by  informa- 
tion, to  libel  or  to  slander  the  Sovereign,  or  his  administration,  or 
the  Constitution  of  the  realm,  or  either  House-  of  Parliament,  or 
its  members,  or  any  judge  or  magistrate.  It  is  also  a  high  misprision 
or  contempt  ;  and  therefore  the  defendant  may  be  lined  to  any 
amount,  or  sentenced  to  a  term  of  imprisonment  of  any  length,  or 
both,  at  the  discretion  of  the  judge,  as  in  praemunire.  Formerly, 
banishment  and  the  pillory  could  also  be  inflicted  ;  but  these  punish- 
ments are  now  abolished.  *  (00  Geo.  III.  &  1  Geo.  IV.  c.  8,  ss.  1,  2, 
3,  4  ;  11  Geo.  IV.  &  1  Will.  IV.  c.  73,  s.  1  ;  7  Will.  IV.  and  1 
Vict.  c.  23).  In  cases  not  calling  for  severer  punishment,  the  of- 
fender may  be  required  to  find  sureties  for  his  good  behaviour. 
{Ex parte  Seymour  v.  Michael  Davitt,  12  L.  R.  Ir.  40  ;  15  Cox,  C.  C. 
242. 

The  offence  can  not  be  tried  at  Quarter  Sessions. 

(i.)    Words  defamatory  of  the  Sovereign  himself 

It  is  sedition  to  speak  or  publish  of  the  King  any  Avords  which 
would  be  libellous  and  actionable  per  se,  if  printed  and  published  of 
any  other  public  character. 

Thus,  any  words  will  be  deemed  seditious,  which  strike  at  the 
King's  private  life  and  conduct,  which  impute  to  him  any  corrupt 
or  partial  views  or  assign  bad  motives  for  his  policy,  which  in- 
sinuate that  he  is  a  tyrant,  and  does  not  take  a  lively  interest  in  the 
welfare  of  his  subjects,  or  which  charge  him  with  deliberately 
favouring  or  oppressing  any  individual  or  class  of  men  in  distinction 
to  the  rest  of  [*480]  his  subjects.  (J2.  v.  Dr.  Shebbeare,  1758,  3 
T.  R.  430,  note).  A  fortiori,  any  words  are  seditious  which  strike 
at  his  title  to  the  Crown,  call  his  legitimacy  in  question,  or  are 
otherwise  treasonable  (12.  v.  Clerk,  1729,  1  Barnardiston,  304  ;  12. 
v.  Knell,  1  Barnard.  305  ;  J2.  v.  JSFutt.  ib.  300.) 

But  to  assert  that  the  King  is  misled  by  his  ministers,  or  that 
he  takes  an  erroneous  view  of  some  great  question  of  policy 
is  not  seditious,  if  it  be  done  respectfully,  with  decency  and 
moderation. 

Illustrations. 

The  following  words  appeared  in  the  Morning  Chronicle  for  October  2nd, 
1809  : — "  What  a  crowd  of  blessings  rush  upon  one's  mind  that  might  be  be- 
stowed upon  the  country  in  the  event  of  a  total  change  of  system!  Of  all 
monarchs,  indeed,  %ince  the  Revolution,  the  successor  of  George  the  Third  will 
have  the  finest  opportunity  of  becoming  nobly  popular."  On  the  trial  of  a 
criminal  information  against  the  proprietor  and  printer  of  the  paper  for  libel 
Lord  Ellenborough  told  the  jury  that  if  they  considered  that  the  words  meant 
that  the  king's  death  would  be  a  blessing  to  the  nation,  and  that  the  sooner  it 
happened  the  better,  then  they  should  rind  the  prisoners  guilty  ;  but  that  if  they 
thought  the  passage  could  fairly  be  construed  as  an  expression  of  regret  that 

(435) 


364  SEDITIOUS    WORDS. 

t an  erroneous  view  had  been  taken  of  public  affairs,  and  of  a  wish  for  some 
change  in  Abe  policy  and  system  of  administration  under  His  Majesty,  they 
might  acquit  them.     The  jury  found  the  prisoners,  Not  Guilty. 

Ii.  v.  Lambert  &  Perry,  2  Camp.  398  ;  3  How.  St.  Tr.  340. 
To  publish  falsely  of  the  King  that  he  is  insane  is  a  criminal  libel,  as  it 
would  be  of  any  other  person. 

Ii.  v.  Harvey  &  Chapman,  2  B.  &  C.  257. 
So  is  charging  the  King  with  a  breach  of  his  coronation  oath. 

Oliver  St.  John's  Cane  (1615),  Noy,  105. 
To  insinuate  that  the  King  is  a  liar  and  a  deceiver,  and  to  assert  that  Ik;  has 
treacherously  betrayed  the  interests  of  his  subjects  and  allies,    and  prostituted 
the  honour  of  his  crown,  (The  North  Briton,  No.  45),  is  a  seditious  libel. 
It.  v.  John  Wilkes  (1763),  4  Burr.  2527  ;  19  How.  St.  Tr.  1075. 
li.  v.  Kearsley  )   -p..      T    T     ,,,, 

It.  v.  John  Williams  \  mg'  u  u  0J> 
As  to  certain  of  the  letters  of  Junius,  see 
R.  v.  Woodfall,  5  Burr.  2661. 
11.  v.  Almon,  ib.  2686. 

Many  dicta  in  the  old  text-books  represent  the  law  as  stricter  on 
this  point  than  is  stated  above.  According  to  Hawkins'  "  Pleas  of 
[*  481]  the  Crown,"  i.  c.  6  (8th  ed.  by  Curwood,  p.  66),  and  4  Black- 
stone,  123,  c.  ix.  ii.  3,  it  is  a  high  misprision  and  contempt  merely  to 
speak  contemptuously  of  the  King,  to  curse  him  or  wish  him  ill,  to 
assert  that  he  lacks  wisdom,  valour  or  steadiness,  or,  in  short,  to  say 
anything  •"  which  my  lessen  him  in  the  esteem  of  his  subjects, 
weaken  his  government,  or  raise  jealousies  between  him  and  his 
people."  But  I  can  find  no  decision  reported  which  supports  so 
wide  a  proposition  :  and  I  venture  to  doubt  if  in  the  present  day  it 
would  be  deemed  a  crime  to  call  the  King  a  coward  or  a  fool. 
Mere  words  of  vulgar  abuse  can  hardly  amount  to  sedition.  In  fact, 
the  only  distinction  that  the  law  makes  between  words  defamatory 
of  the  King,  and  of  any  other  leading  public  character  appear  to 
be:— 

(i)  That  the  former  maybe  criminal  when  only  spoken ;  whereas 
the  latter  must  be  written  or  printed  and  published  ; 

(ii)  That  in  the  case  of  the  former  it  can  not  be  pleaded  as  a 
defence  that  the  words  are  true.  {R.  v.  Francklin,  (1731),  9  St. 
Tr.  255  ;  17  Howell's  St.  Tr.  026  ;  Ex  parte  O'Brien,  12  L.  R.  Ir. 
29  ;   15  Cox,  C.  C.  180.) 

(ii.)    Words  defamatory  of  the  lying's  Ministers  and    Government. 

It  is  sedition  to  speak  or  publish  of  individual  members  of  the 
Government  words  which  would  be  libellous  and  actionable  per  se, 
if  written  and  published  of  any  other  public  character. 

It  is  also  sedition  to  speak  or  publish  words  defamatory  of  the 
Government  collectively,  or  of  their  general  administration,  with 
intent  to  subvert  the  law,  to  produce  public  disorder,  or  to  foment  or 
promote  rebellion. 

"  There  is  no  sedition  in  censuring  the  servants  of  the  Crown,  or 
in  just  criticism  on  the  administration  of  the  law,  or  in  seeking 
redress  of  grievances,  or  in  the  fair  [*  482]   discussion  of  all  party 

1 436) 


WORDS    DEFAMATORY    OF    THE    KINO.  365 

questions."  (Per  Fitzgerald,  J.,  in  E.  v.  Sullivan,  11  Cox, 
C.  C.  50.) 

Where  corrupt  or  malignant  motives  arc  attributed  to  an  indi- 
vidual minister,  the  words  arc  clearly  seditious. 

Where,  however,  no  particular  person  is  libelled,  the  jury  must  be 
satisfied  that  the  author  or  publisher  maliciously  and  designedly 
intended  to  subvert  our  laws  and  constitution,  and  to  excite  dissat- 
isfaction and  disorder.  There  must  be  a  criminal  intent.  But  such 
an  intent  will,  of  course,  be  presumed,  if  the  natural  and  necessary 
consequence  of  the  words  employed  be  "to  excite  a  contempt  of 
Her  Majesty's  Government,  to  brin!;  the  administration  of  its  laws 
into  disrepute,  and  thus  impair  their  operation,  to  create  dissaffec- 
tion,  or  to  disturb  the  public  peace  and  tranquillity  of  the  realm." 
<E.  v.  Collins    (1839),  9  C.  &  P.  45G  ;   E.  v.  Zovett,  ib.   102.) 

In  determining  whether  such  is  a  natural  and  necessary  conse- 
quence of  the  words  employed,  the  jury  should  consider  the  state  of 
the  country  and  of  the  public  mind  at  the  date  of  the  publication  : 
passages  which  in  tranquil  times  might  be  comparatively  innocent 
might  be  most  pernicious  in  a  time  of  insurrection.  {Per  Fitz- 
gerald, J.,  11  Cox,  C.  C.  50,  59.)  On  the  other  hand,  the  circum- 
stances which  provoked  the  attack  may  tell  in  the  prisoner's  favour. 
If  a  man  be  smarting  under  a  grievance,  or  honestly  indignant  at 
some  act  of  a  government  official,  he  can  not  be  expected  to  speak 
or  write  as  calmly  and  deliberately  as  if  he  were  discussing  matters 
in  which  he  felt  no  special  interest.  (Per  Littledale,  J.,  in  E.  v. 
Collins,  9  Car.  &  P.  460.)  The  jury  should,  in  every  case,  consider 
the  book  or  newspaper  article  as  a  whole,  and  in  a  fair,  free,  and 
liberal  spirit  :  not  dwelling  too  much  upon  isolated  passages,  or  upon 
a  strong  word  here  or  there,  which  may  be  qualified  by  the  context, 
but  endeavouring  to  gather  the  general  effect  which  the  whole  coin- 
position  would  have  on  the  minds  of  the  public.  Considerable  lati- 
tude must  be  given  to  political  writers.  [*  483]  (Per  Lord  Kenyon, 
C.  J.,  in  E.  v.  Eeeves,  Peake,  Add.  Ca.  84  ;    26  How.  St.  Tr.  530.) 

Illustrations. 

To  attribute  "  the  sad  state  of  the  country  to  the  influence  of  French  gold  on 
those  who  have  the  conduct  of  affairs,"  is  aseditious  libel, though  no  particular 
minister  is  singled  out ;  but  to  complain  of  "  the  mismanagement  of  the  navy 
through  the  ig-norance  and  incapacity  of  those  who  have  the  management  of  it," 
would  (it  is  submitted)  not  be  held  a  libel  in  the  present  day. 

R.  v.  Tutchin  (1704),  5  St.  Tr.  527  :  14  Howell's  St.  Tr.  1095  ;  Holt, 
424  ;  2  Lord  Raym.  1061  ;  1  Salk.  50  ;  6  Mod.  268. 
An  announcement  that  a  collection  had  been  made  for  "  the  relief  of  the 
widows,  orphans,  and  aged  parents  of  our  beloved  American  fellow-subjects, 
who,  faithful  to  the  character  of  Englishmen,  preferring  death  to  slavery,  were 
for  that  reason  only  inhumanly  murdered  by  the  king's  troops  at  or  near  Lex- 
ington and  Concord  in  the  province  of  Massachusetts  on  the  19th  of  April  last.'' 
was  held  a  seditious  libel  on  his  Majesty's  Government  and  their  employment  of 
his  troops,  tending  to  foment  discord  and  to  promote  rebellion. 

R.  v.  John  Home  (af terwards  Joh  n  Home  Tooke)  (1777),  11  St.  Tr. 

264 ;  20  Howell's  St.  Tr.  651  ;  Cowp.  672. 

Articles  in  the  Examiner  declaring  that  an  improper  and  cruel  method  of 

punishment  was  practised  in  the  King's  army,  and  that  his  soldiers  were  punished 

with  excessive  severity  thereby,  was  declared  by  the  jury  in  spite  of  the  sum- 

(437) 


366  SEDITIOUS    WOBDS. 

ming  up  of  Lord  Ellenborough,  not  to  be  a  seditious  libel  on  the  Government 
and  the  military  service  of  the  King  tending  to  excite  disaffection  in  the  army 
and  to  deter  others  from  becoming  recruits. 

It.  v.  Join,  Hunt  d-Jo/in  La)//,  Hunt  (1811),  31  Howell's  St.  Tr.  408; 
2  Camp.  5«3. 

See  also  It.  v.  Pym,  vel  Prin  (1664),  Sid.  219  ;  1  Keble,  773. 

R.  v.  Beere  (1698),  12  Mod.  219  ;  Holt,  422  ;  Carth.  409  ;  2  Salk. 
417  ;  1  Ld.  Raym.  414. 

It.  v.  Laurence  (1699),  12  Mod.  311  ;  Dig.  L.  L.  121. 

R.  v.  Bedford  (1714),  cited  in  2  Str.  789  ;  Dig.  L.  L.  19,  121. 

R.  v.  Bliss  (1719),  Dig.  L.  L.  122. 

R.  v.  Francklin  (1731),  9  St.  Tr.  255  ;  17  Howell's  St.  Tr.  626. 

R.  v.  Owen  (1752),  18  Howell's  St.  Tr.  1203  ;  Dig.  L.  L.  67. 

R.  v.  Cobbett  (1804),  29  Howell's  St.  Tr.  1. 

R.  v.  Johnson  (1805),  29  Howell's  St.  Tr.  103 ;  7  East,  65  ;  3  Smith, 
94. 

R.  v.  Burdett  (1820),  4  B.  &  Aid.  95,  115,  314. 

R.  v.  Collins  (1839),  9  C.  &  P.  456. 

R.  v.  Lovett  (1839),  9  C.  &  P.  462. 

R.  v.  John  Mitchell  (1848),  11  L.  T.  (O.  S.)  112 ;  3  Cox,  C.  C.  94. 

Re,  Crowe  (1848),  3  Cox,  C.  C  123. 

R.  v.  Fussell  (1848),  3  Cox,  C.  C.  291. 

[*484]  By  the  Statutes  of  Scandalum  magnatum,  3  Edw.  I.  c. 
34  ;  2  Rich.  II.  c.  5  ;  12  Rich.  II.  c.  11  ;  ante,  c.  IV.  pp.  134 — 136, 
it  is  a  crime  to  tell  or  publish  false  news  or  tales  of  the  great  officers 
of  the  realm,  &c. 

So  also  in  America,  by  Act  of  Congress,  July  14,  1798,  it  is  an 
indictable  offence  to  libel  the  Government,  Congress  or  President 
of  the  United  States. 

There  are  old  cases  which  appear  to  go  further,  and  to  decide  that 
any  publication  tending  to  beget  an  ill  opinion  of  the  Government  is 
a  criminal  libel.  "  If  persons  should  not  be  called  to  account  for 
possessing  the  people  with  an  ill  opinion  of  the  Government,  no 
Government  can  subsist ;  for  it  is  very  necessary  for  all  Governments 
that  the  people  should  have  a  good  opinion  of  it"  (sic).  (Per  Lord 
Holt,  C.  J.,  in  E.  v.  Tutchin  (1704),  5  St.  Tr.  532  ;  14  Howell's  St. 
Tr.  1127.)  And  Lord  Ellenborough,  C.  J.,  expressly  following  this 
decision,  told  the  jury  in  E.  v.  Cobbett  (1804),  29  Howell's  St.  Tr. 
49  : — "It  is  no  new  doctrine  that  if  a  publication  be  calculated  to 
alienate  the  affections  of  the  people,  by  bringing  the  Government 
into  disesteem,  whether  the  expedient  be  by  ridicule  or  obloquy, 
....  it  is  a  crime."  If  this  is  to  be  taken  literally,  all  Opposition 
newspapers  commit  such  crime  every  day.  Such  a  doctrine,  if  strictly 
enforced,  would  destroy  all  liberty  of  the  press,  and  is,  moreover,  in 
conflict  with  more  recent  dicta : — "  The  people  have  a  right  to  dis- 
cuss any  grievances  that  they  may  have  to  complain  of."  {Per  Little- 
dale,  J.,  in  E.  v.  Collins,  9  Car.  &  P.  461.)  "A  journalist  may 
canvass  and  censure  the  acts  of  the  Government  and  their  public 

policy — and  indeed,  it  is  his  duty It  might  be  the  province  of 

the  press  to  call  attention  to  the  weakness  or  imbecility  of  a  Govern- 
ment when  it  was  done  for  the  public  good."  (Per  Fitzgerald.  J., 
11  Cox,  C.  C.  54,  57.)  It  is  clearly  legitimate  and  constitutional  to 
endeavour,  by    means  of   arguments   addressed  to  the   people,    to 

(438) 


WOKDS    EXCITING    DISAFFECTION.  367 

replace  one  set  of  ministers  by  another.  And  the  precise  objecl  of 
such  arguments  is  to  bring  the  ministers  now  in  office  into  disesteem, 
and  to  alienate  from  them  the  affections  of  the  people.  Sir  Francis 
Burdett  could  not  possibly  be  convicted  in  the  present  day  for  such 

an  electoral  address  as  he  issued  on  August  22nd,  1819.  (Sec  |  |;. 
&  Aid.  110,  7  n.) 

But  I  think  Lord  Holt's  words  must  not  be  taken  strictly  in  their 
modern  signification  :  we  must  construe  them  with  reference  to  the 
[*485]  times  in  which  he  spoke.  He  clearly  was  not  referring  to  a 
quiet  change  of  ministry  which  in  no  way  shakes  the  throne,  or 
loosens  the  reins  of  order  and  government.  In  1704  the  present 
system  of  party-government  was  not  in  vogue  :  it  was  barely  con- 
ceived by  William  III.,  and  was  certainly  not  generally  understood 
under  Queen  Anne.  And  even  in  Lord  Ellenborough's  time  the 
ministry  were  still  appointed  by  the  King  and  not  by  the  people. 
By  "the  Government"  both  judges  meant,  not  so  much  a  particular 
set  of  ministers,  as  the  political  system  settled  by  the  Constitution, 
the  general  order  and  discipline  of  the  realm.  "To  .subvert  the 
Government"  is  the  phrase  employed  in  the  earlier  case  of  JR.  v.  Beere, 
12  Mod.  221  ;  Holt,  422  ;  and  to  Lord  Holt's  mind  "subverting  the 
Government "  meant  bringing  in  the  Pretender  ;  to  Lord  Ellen- 
borough's  the  introduction  of  Jacobinism  and  Red  Republicanism 
from  France  :  not  the  substitution  of  one  statesman  for  another  as 
First  Lord  of  the  Treasury. 

(iii.)    Words  defamatory  of  the  Constitution  and  of  our  lavs 

generally. 

All  malicious  endeavours  by  word,  deed  or  writing,  to  promote 
public  disorder  or  to  induce  riot,  rebellion  or  civil  Avar,  are  clearly 
seditious,  and  may  be  overt  acts  of  treason.  But  where  no  such 
conscious  endeavour  is  proved,  still,  if  the  natural  and  necessary  con- 
sequence of  any  words,  deed,  or  writing,  be  to  subvert  our  laws 
and  constitution  and  to  excite  or  promote  discontent  and  disorder 
amongst  the  people,  a  criminal  intent  will  be  presumed  :  and  the 
author  is  guilty  of  sedition.  (R.  v.  Burdett  (1820),  4  B.  &  Aid.  95  ; 
B.  v.  Collins  (1839),  9  C.  &  P.  456.)  Thus  all  publications,  the 
direct  tendency  of  which  is  to  bring  the  constitution  of  the  realm 
into  hatred  and  contempt,  and  to  induce  the  people  to  disobey  the 
laws  and  to  defy  legally  [*486]  constituted  authority,  are  seditious 
libels,  for  which  the  author  is  criminally  liable. 

But  mere  theoretical  discussions  of  abstract  questions  of  political 
science,  comparisons  of  various  forms  and  systems  of  government, 
and  controversies  as  to  details  of  our  own  constitutional  law,  are 
clearly  permissible.  And  so  is  any  bond  fide  effort  for  the  repeal 
by  constitutional  methods  of  any  law  deemed  obnoxious.  The  prose- 
cution must  satisfy  the  jury  that  the  publication  is  calculated  to  dis- 
turb the  tranquillity  of  the  State  and  to  lead  ignorant  persons  to 
endeavour  to  subvert  the  Government  and  to  break  the  laws  of  the 
realm.       Without     satisfactory    proof    of     such    tendency,    there 

"  (439) 


368  SEDITIOUS    WORDS. 

is  no  evidence  of  that  criminal  intention  which  is  essential  to  con- 
stitute the  offence. 

The  old  cases  B.  v.  Brewster  (1663),  Dig.  L.  L.  76  ;  B.  v.  Harri- 
son (1677),  3  Keb.  841  ;  Ventr.  324,  and  B.  v.  Bedford  (1714), 
cited  in  2  Str.  789,  so  far  as  they  run  counter  to  this  proposition, 
must  he  considered  as  overruled.  It  seems  that  Harrison  would 
not  have  been  convicted  but  for  the  stat.  13  Car.  II.  c.  1,  which, 
to  my  surprise,  remains  still  in  part  unrepealed.  See  post,  pp.  488, 
691. 

The  jury  must  find,  first,  that  the  defendant  in  fact  spoke  or  pub- 
lished the*  words  complained  of  :  secondly,  that  the  words  are  sedi- 
tious and  were  spoken  and  published  with  the  intent  alleged  in  the 
indictment.  The  latter  as  well  as  the  former  is  entirely  a  question 
for  the  jury.  The  fact  that  the  House  of  Commons  has  resolved 
that  the  same  publication  is  "  a  malicious,  scandalous  and  seditious 
libel,  tending  to  create  jealousies  and  divisions  amongst  the  liege 
subjects  of  Her  Majesty,  and  to  alienate  the  affections  of  the  people 
of  this  country  from  the  Constitution,"  ought  not  to  weigh  with  the 
jury  in  the  least.  The  defendant  is  not  to  "  be  crushed  by  the  name  of 
his  prosecutor."  (Per  Lord  Kenyon,  C.  J.,  in  B.  v.  Beeves,  Peake, 
Add.  Ca.  84. ) 

[*487j'"  In  a  free  country  like  ours,"  says  Lord  Kenyon,  C.  J., 
in  the  same  case,  p.  86,  "  the  productions  of  a  political  author 
should  not  be  too  hardly  dealt  with."  The  jury  should  " recollect 
that  they  are  dealing  with  a  class  of  articles  which,  if  written  in  a 
fair  spirit  and  bond  fide,  might  be  productive  of  great  public  good, 
and  were  often  necessary  for  public  protection  ; "  and  they  should 
therefore  "  deal  with  them  in  a  broad  spirit,  allowing  a  fair  and 
wide  margin,  looking  upon  the  whole,  not  on  isolated  words."  And 
they  shouTd  also  take  into  their  consideration  the  state  of  the  country 
and  of  the  public  mind  at  the  date  of  publication.  {Per  Fitzgerald, 
J.,  B.  v.  Sullivan,  11  Cox,  C.  C.  50,  59.) 

Illustrations. 

To  assert  that  a  parliament  would  be  justified  in  making  war  against  any 
kin^  who  broke  the  Social  Compact,  was  naturally  deemed  seditious  in  the  days 
of  Charles  II.,  as  tending  to  a  renewal  of  the  Civil  War. 
R.  v.  Brewster  (1663),  Dig.  L.  L.  76. 
B    v  Harrison  (1677),  3  Keble,  841  ;  Ventr.  324  ;  Dig.  L.  L.  66. 

To  assert  that  "  the  late  revolution  was  the  destruction  of  the  laws  of  England," 
or  an  unjustifiable  and  unconstitutional  proceeding,  and  that  the  Act  of  Settle- 
ment was  "  illegal  and  unwarrantable,"  and  "  had  been  attended  with  fatal  and 
pernicious  consequences  to  the  subjects  of  this  realm,"  was  deemed  seditious  in 
the  days  of  Queen  Anne  and  of  George  II.,  as  tending  to  favor  the  cause  of  the 

Pretender 

'  B   v  Dr.  Brown  (1707),  11  Mod.  86  ;  Holt,  425. 
B   v.  Bichard  Nutt  (1754),  Dig.  L.  L.  68. 
And  see  B.  v.  Thomas  Paine  (1792),  22  Howell's  St.  Tr.  358. 
The  Reverend  William  Winterbotham  was  convicted  for  preaching  a  sermon 
on  November  18th,  1792,  containing  the  following  words,  which  were  deemed 
seditious  :— "  Darkness  has  long  cast  her  veil  over  the  land.     Persecution  and 

(440j 


CONTEMPT    OF   PABLIAMENT.  369 

tyranny  have  carried  universal  sway.  Magisterial  powers  have  long  been  a 
scourge  to  the  liberties  and  rights  of  the  people."  He  was  lined  £100  and 
sentenced  to  two  years'  imprisonment. 

R.  v.  Winterbotham,  22  Bowell's  St.  Tr.  823,  875. 

B.  v.  Richard  Carlile,  -1  <'.  <S  P.  415. 
To  habitually   republish  in  Ireland  during  a  time  of  political  excitement  and 
threatened   insurrection  extracts  from    American   papers  expressing  sympathy 
with  the  Fenians,  and  inciting  all  Irishmen  to  rebel,  without  one  word  of  edi- 
torial comment  or  disapproval,  is  an  act  of  sedition. 

It.  v.  Pigott(186B),  11  Cox,  C.  C.  -17. 

See  Irish  St.  Tr.  1848,  1865,  1867,  1868. 
[*488]  It  is  a  misdemeanour  i'or  a  Roman  Catholic  priest  to  address  a  meeting 
of  his  parishioners  and  urge  them  not  to  pay  any  rent  till  a  certain  evicted 
tenant  is  reinstated  in  his  holding  ;  such  advice  coming  from  a  person  in  his 
position  being  an  incitement  to  the  parishioners  to  conspire  not  to  pay  their  just 
debts. 

B.  v.  J.T.  of  Queen's  County,  10  L.  R.  Ir.  294  ;  13  Cox,  C.  C.  149. 

R.  v.  JJ.  of  Cork,  10  L.  R.  Ir.  1  ;  15  Cox,  C.  C.  78. 

Export*  Seymour  v.  Michael  Davitt,  12  L.  R.  Ir.  46  ;  15  Cox,  C.  C. 
242. 

By  an  entirely  obsolete,  but  still  unrepealed,  section,  any  person 
who*  shall  maliciously  and  advisedly  declare  and  publish  by  writing, 
printing,  preaching  or  other  speaking,  that  the  Parliament  begun  at 
Westminster  on  November  3rd,  1640  (the  Long  Parliament]  is  not 
yet  dissolved,  or  that  it  ought  still  to  be  in  being,  or  hath  yet  any 
continuance  or  existence,  or  that  both  Houses  of  Parliament  or 
either  House  of  Parliament  have  or  bath  a  legislative  power  without 
the  King,  or  any  other  words  to  the  same  effect,  incurs  the  penalties 
of  &  praemunire.  13  Car.  II.  stat.  I.  c.  1,  s.  3.  See  also  6  Anne,  7 
(al.  41),  s.  2. 

(iv.)    Words  defamatory  of  either  House  of  Parliament,  or  of  the 
Members  thereof. 

It  is  a  misdemeanour  to  speak  or  publish  of  individual  members 
of  either  House  of  Parliament,  in  their  capacity  as  such,  words 
which  Avould  be  libellous  and  actionable  x>er  sei  if  written  and  pub- 
lished of  any  other  public  character.  ,  • 

It  is  also  a  misdemeanour  to  speak  or  publish  words  defamatory 
of  either  House  collectively,  with  intent  to  obstruct  or  invalidate 
their  proceedings,  to  violate  their  rights  and  privileges,  to  diminish 
their  authority  and  dignity,  or  to  bring  them  into  public  odium  or 
contempt. 

In  both  cases,  all  such  words  are  also  a  contempt  and  breach  of 
privilege,  punishable  summarily  by  the  House  itself,  with  fine  and 
imprisonment. 

Also  bv  the  Statutes  of  Scandalum  magnatum,  3  Edw.  I.  c.  34  ; 
2  Rich.  II.  c.  5  ;  12  Rich.  II.  c.  11  ;  ante,  c.  IV.  pp.  134,  135,  it  is 
a  crime  to  "  devise,  tell  or  publish  any  false  news,  lyes,  or  such 
other  false  things,"  of  any  member  of  the  House  of  Lords,  or  of  any 
great  officer  of  the  realm. 
[*  489]  Illustrations. 

Raincr  printed  a  scandalous  libel,  reflecting  both  on  the  House  of  Lords  and 
on  the  House  of  Commons,  called  "  Robin's  Game,  or  Seven's  the  Main  ;  "  he 
24  lib.  &  slan.  (441) 


370  SEDITIOUS    WORDS. 

was  tried  in  the  Court  of  King's  Bench,  fined  £50,  and  sentenced  to  be  impris- 
oned for  two  years  and  until  he  should  pay  such  line. 

It.  v.  Iiainer,  2  Barnard.  293  ;  Dig.  L.  L.  125. 

On  three  occasions  the  House  of  Commons  has  voted  a  particular 
publication  a  scandalous  and  seditious  libel,  and  a  breach  of  privi- 
lege, &c,  and  petitioned  the  Crown  to  direct  the  Attorney-General 
to  prosecute  the  author,  printers  and  publishers  thereof.  But,  strange 
to  say,  on  each  occasion  such  prosecution  has  been  unsuccessful  ; 
the  jury  in  each  of  the  three  cases  having  acquitted  the  prisoner. 
(B.  v.  Owen  (1752),  18  Howell's  St.  Tr.  1203,  1228  ;  R.  v.  Stock- 
dale  (1789),  22  Howell's  St.  Tr.  238  ;  B.  v.  Reeves  (1796),  Peake, 
Add.  Ca,  84  ;  26  Howell's  St.  Tr.  530.)  Hence  the  House  of  Com- 
mons now  invariably  deals  with  offenders  itself. 

The  House  of  Lords  can  inflict  fine  and  imprisonment  for  any 
leno-th  of  time.  In  former  days  the  pillory  was  sometimes  added  ; 
e.  g.,  in  the  case  of  Thomas  Morley  in  1623,  and  of  William  Carr  in 
1667,  who  were  sentenced  to  stand  in  the  pillory  for  libelling  indi- 
vidual peers. 

The  House  of  Commons  can  inflict  fine  and  imprisonment,  and, 
in  the  case  of  a  member,  expulsion.  One  unfortunate  member, 
Arthur  Hall,  suffered  all  three  penalities  in  1581  for  publishing  a 
book  disparaging  the  authority  of  the  House  of  Commons,  and 
reflecting  upon  certain  individual  members — see  Hallam,  Const. 
Hist.  Vol.  I.  c.  v. — the  first  instance  of  a  libel  being  punished  by 
the  House.  But  in  the  case  of  a  commitment  by  the  House  of 
Commons,  the  imprisonment  can  only  last  till  the  close  of  the  exist- 
ing session.  The  prisoner  must  be  liberated  on  prorogation  (Stock- 
dale  v.  Hansard,  9  A.  &  E.  114  ;  GrisseVs  case,  Aug.  1879).  It  is 
otherwise  with  the  House  of  Lords. 

The  Speaker's  warrant  is  a  perfect  answer  to  any  writ  of  habeas 
corpus,  and  fully  justifies  the  Serjeant-at-arms  and  his  officers  in 
arresting  the  offender,  and  protects  them  from  any  action  of  assault 
[*  490]  or  false  imprisonment  (Howard  v.  Gosset,  10  Q.  B.  359  ; 
Burdett  v.  Colman,  14  East,  163).  It  will  not  be  scanned  too 
strictly  by  the  courts  of  law,  nor  set  aside  for  any  defect  of  form 
(B.  v.  Paty,  2  Ld.  Raym.  1108  ;  B.  v.  Hobhouse  (1819),  2  Chit. 
210).  Thus,  the  libel  for  which  the  prisoner  was  committed  need 
not  be  set  out  in  such  warrant  (Burdett  v.  Abbot,  14  East,  1  ;  see  1 
Moore,  P.  C.  C.  80)  ;  though  the  libel  must  always  be  set  out  at 
full  length  in  either  an  indictment  (Bradhmgh  and  Besant  v.  The 
Queen,  (C.  A.)  3  Q.  B.  D.  607  ;  48  L.  J.  M.  C.  5  ;  26  W.  K  410  ; 
38  L.  T.  118),  or  a  statement  of  claim  (Harris  v.  Warre,  4  C.  P.  D. 
125  ;  48  L.  J.  C.  P.  310  ;  27  W.  R.  461  ;  40  L.  T.  429).  Still  less 
will  any  court  of  common  law  inquire  into  the  propriety  of  the 
Commitment  or  hear  it  argued  that  the  act  complained  of  did  not 
amount  to  a  contempt,  or  that  the  privilege  of  the  House  alleged  to 
have  been  broken  does  not  exist  (Stockdale  v.  Hansard,  9  A.  &  E 
165,  195).     The    Queen's    Bench   Division  cannot  bail  a  prisoner 

(442) 


COLONIAL    LEGISLATURES.  371 

committed  for  a  contempt  of  the  House  of  Commons  {Hon.  Alex. 
Murray's  Case,  1  Wilson,  299). 

The  House  is  the  best  judge  of  its  own  privileges,  and  of  what  is 
a  contempt  of  them.  But  if  on  the  face  of  the  warrant  it  plainly 
and  expressly  appears  that  the  House  is  exceeding  its  jurisdiction, 
it  will  be  the  duty  of  the  High  Court  to  order  the  release  of  the 
prisoner.  (9  A.  &  E.  169  ;  Hawkins,  3  PI.  Cr.  II.  15,  73,  p.  219  ; 
R.  v.  Evans  and  another,  8  Dowl.  451.') 

The  House  may  commit  for  any  contempt  of  one  of  its  com- 
mittees, or  of  the  members  of  any  such  committee  ;  instances  of 
such  committals  occurred  in  1832,  1858,  and  1879. 

So  in  America  the  House  of  Representatives  has  a  general  power 
of  committing  for  contempt,  whether  the  offender  be  a  member  or 
a  stranger  {Anderson  v.  Dunn,  6  Wheat.  204).  But,  as  with  the 
English  House  of  Commons,  the  imprisonment  terminates  at  the 
adjournment  or  dissolution  of  Congress. 

But  with  subordinate  legislative  bodies  it  is  different.  No  power 
of  committing  for  contempt  is  inherent  in  them  {Kielley  v.  Carson,  4 
Moore,  P.  C.  C.  63  ;  Fenton  v.  Hampton,  11  Moore,  P.  C.  C.  347, 
overruling  dicta  of  Lord  Denman,  C.  J.,  in  Stockdale  v.  Hansard,  9 
A.  &  E.  114  ;  of  Parke,  B.,  in  Beaumont  v.  Barrett,  1  Moore,  P.  C. 
C.  76)  ;  although  they  have,  of  course,  power  to  preserve  order  dur- 
ing their  deliberations,  which  involves  a  power  to  remove  from  the 
[*  491]  Chamber  any  person  obstructing  their  proceedings,  or  other- 
wise guilty  of  disorderly  conduct  in  the  presence  of  the  House  itself, 
and  if  theoffender  be  a  member,  to  exclude  him  for  a  time,  or  even 
to  expel  him  altogether.  Such  latter  power  is  necessary  for  self- 
preservation  ;  and  is  quite  distinct  from  the  judicial  power  of  sen- 
tencing the  obstructive  to  a  term  of  imprisonment  as  a  punishment 
for  his  misconduct  {Doyle  v.  Falconer,  L.  R.  1  P.  C.  328  ;  36  L. 
J.  P.  C.  37;  15  W.  R.  366  ;  Attorney- General  of  New  South 
Wales  v.  Macpherson,  L.  R.  3  P.  C.  268  ;  7  Moo.  P.  C.  (N  S.)  49  ; 
39  L.  J.  P.  C.  59  ;  Barton  v.  Taylor,  11  App.  Cas.  197  ;  55  L.  J. 
P.-  C.  1  ;  55  L.  T.  158).  Thus  the  House  of  Assembly  of  New- 
foundland {Kielley  v.  Carson,  4  Moore  P.  C.  C.  63)  ;  the  Legisla- 
tive Council  of  Van  Diemen's  Land  {Fenton  v.  Hampton,  11  Moore, 
P.  C.  C.  347)  ;  the  House  of  Keys  in  the  Isle  of  Man  {Ex  parte 
Brown,  5  B.  &  S.  280  ;  33  L.  J.  B.  Q.  193  ;  12  W.  R,  821  ;  10  L. 
T.  453)  ;  and  the  Legislative  Assembly  of  the  Island  of  Dominica 
{Doyle  v.  Falconer,  L.  R  1  P.  C.  328  ;  36  L.  J.  P.  C.  33  ;  15  W. 
R.  366),  possess  no  inherent  powers  to  commit  for  contempt. 

But  though  such  a  power  is  not  inherent  in  any  inferior  legisla- 
ture, it  may  be  expressly  granted  by  statute  ;  thus  the  Legislative 
Assembly  of  Victoria  possesses  this  privilege  by  virtue  of  the  18  & 
19  Vict.  c.  55,  s.  35,  and  the  Colonial  Act,  20  Vict.  No.  1  {Dill  v. 
Murphy,  1  Moore,  P.  C.  C.  (N.  S.)  487  ;  Speaker  of  the  Legislative 
Assembly  of  Victoria  v.  Glass,  L.  R.  3  P.  C.  560  ;  40  L.  J.  P.  C. 
17  ;  24  L.  T.  317).  Also,  it  is  said  that  such  a  power  may  be  ac- 
quired by  prescription,  acquiescence  and  usage.  {Per  Lord  Ellen- 
borough,  C.  J.,  in  Burdett  v.  Abbot,  14  East,  137,  and  Cockburn,  C. 

(443) 


372  SEDITIOUS    WORDS. 

J.,  in  Ex  parte  Brown,  5  B.  &  S.  293.)  And  it  is  by  virtue  of  such 
acquiescence  and  usage  that  the  Jamaica  House  of  Assembly  has 
the  power  of  committing  a  libeller,  if  indeed  it  lias  such  power  at 
all  (Beaumont  v.  Barrett,  1  Moore,  P.  C.  C.  80,  as  explained  by 
Parke,  B.,  in  4  Moore,  P.  C.  C.  89). 

[*  492]   (v.)    Words  defamatory  of  Courts  of  Justice  and  of 
Individual  Judges. 

(a)  Superior  Courts. 

It  is  a  misdemeanour  to  speak  or  publish  of  any  judge  of  a  Supe- 
rior Court  words  which  would  be  libellous  and  actionable  }>er  se,  if 
written  and  published  of  any  other  public  officer. 

It  is  also  a  misdemeanour  to  speak  or  publish  words  defamatory 
of  any  court  of  justice  or  of  the  administration  of  the  law  therein, 
with  intent  to  obstruct  or  invalidate  its  proceedings,  to  annoy  its 
officers,  to  diminish  its  authority  and  dignity,  and  to  lower  it  in 
public  esteem. 

Such  words,  whether  spoken  or  written,  are  punishable  on  indict- 
ment or  information,  with  fine  or  imprisonment  or  both.  They  are 
also  in  every  such  case  a  contempt  of  court  punishable  summarily 
by  the  Court  itself  with  fine  or  commitment. 

Such  words  are  also  indictable  under  the  Statutes  of  Sca?idalum 
magnalum  (3  Edw.  I.  c.  34  ;  2  Rich.  II.  c.  5  ;  12  Rich.  II.  c.  11  ; 
ante,  c.  IV.  pp.  134,  135),  as  well  as  at  common  law. 

It  is  immaterial  whether  the  words  be  uttered  in  the  presence  of 
the  Court  or  at  a  time  when  the  Com-t  is  not  sitting,  and  at  a  dis- 
tance from  it  ( Crawford's  Case,  13  Q.  B.  630  ;  18  L.  J.  Q.  B.  225  ; 
13  Jur.  955)  ;  nor  need  they  necessarily  refer  to  the  judges  in  their 
official  capacity. 

But  "  there  is  no  sedition  in  just  criticism  on  the  administration 
of  the  law.  ...  A  writer  may  freely  criticise  the  proceedings  of 
courts  of  justice  and  of  individual  judges — nay,  he  is  invited  to  do 
so,  and  to  do  so  in  a  free,  and  fair,  and  liberal  spirit.  But  it  must 
be  without  malignity,  and  not  imputing  corrupt  or  malicious  mo- 
tives." (Per  Fitzgerald,  J.,  in  B.  v.  Sullivan,  11  Cox,  C.  C.  50.) 
"  It  certainly  is  lawful,  with  decency  and  candour,  to  discuss  the 
propriety  of  the  verdict  of  a  jury,  or  the  decisions  of  a  [*  493] 
judge,  ....  but  if  the  extracts  set  out  in  the  information  contain 
no  reasoning  or  discussion,  but  only  declamation  and  invective,  and 
were  written,  not  with  a  view  to  elucidate  the  truth,  but  to  injure 
the  characters  of  individuals,  and  to  bring  into  hatred  and  contempt 
the  administration  of  justice  in  the  country,"  then  the  defendants 
have  transgressed  the  law,  and  ought  to  be  convicted.  (Per  Grose, 
J.,  in  B.  v.   White  and  another,  1  Camp.  359,  n.) 

Illustrations. 

To  say  that  a  judge  had  been  bribed,  or  that  in  any  particular  case  he  had 
endeavoured  to  serve  his  own  interests,  or  those  of  his  friends  or  of  his  party,  or 
wished  to  curry  favour  at  Court,  or  was  influenced  by  fear  of  the  Government 

(444) 


SUPERIOR    COURTS. 


373 


or  of  any  great  man,  or  by  any  other  side-motive  other  than  a  simple  desire  to 
arrive  at  the  truth  and  to  mete  out  justice  impartially,  is  a  seditious  libel. 

See  R.  v.  Lord  George  Gordon,  22  Howell's  St.  Tr.  177. 
To  call  the  Lord  Chief  Justice  "  a  traitor  and  a  perjured  judge,"  and  to  allege 
that  a  recent,  judgment  delivered  by  him  was  treason,  is  a  misdemeanour. 

Ji.'v.  l/rtfe  (1&62),  15  Vin.  Abr.  89. 

Hutton,  J.  v.  Harrison,  Hutton,  131. 
To  say  that  the  Lord  Chief  Justice  disgraces  his  high  station  and  prevents 
justice  being  done,  is  a  misdemeanour. 

R.  v.  Hart  and  White  (1808),  30  How.  St.  Tr.  11G8,  1345  ;  10  East,  94. 

R.  v.    Wrennum  (1619),  Popham,  135. 

Butt  v.  Conant,  1  Brod.  &  Bing.  548  ;  4  Moore,  195 ;  Gow,  84. 
Hurry  sued  Watson  for  a  malicious  prosecution,  and  recovered  damages 
£3,000:  the  corporation  of  which  Watson  was  a  member  thereupon  resolved 
"  that  Mr.  Watson  had  been  actuated  by  motives  of  public  justice  in  prosecut- 
ing Hurry,"  and  voted  him  £2,300  towards  payment  of  his  damages  The 
Court  of  King's  Bench  granted  an  information  against  the  members  of  the  cor- 
poration. 

R.  v.  Watson  &  others,  2  T.  R.  199. 
[That  the  vote  of  money  was  an  improper  employment  of  the  corporate  funds 
is  very  probable  ;  but  so  far  as  the  mere  words  of  the  resolution  are  concerned, 

1  see  no  misdemeanour.  They  appear  to  me  to  be  but  a  temperately  worded 
statement  that  the  corporation  differed  from  the  jury  in  their  opinion  of  Mr. 
Watson's  conduct.] 

Besides  such  indictable  offences,  many  other  acts  and  words  are 
contempts  of  court.  Thus  it  is  contempt  of  court  to  insult  the  judge, 
jury  or  witnesses,  to  obstruct  any  officer  of  the  Court  in  the  execu- 
tion of  his  duty,  to  express  contempt  for  the  process  of  the  Court, 
to  calumniate  the  parties  concerned  in  any  cause,  to  prejudice  the 
[*494]  minds  of  the  public  against  the  suitors  or  others  before  the 
cause  is  finally  heard,  or  in  any  other  way  to  taint  the  source  of 
justice  or  to  divert  or  interrupt  its  ordinary  course.  (See  the  judg- 
ment of  Blackburn,  J.,  in  Skipworth's  Case,  L.  R.  9  Q.  B.  232,  241.) 
Lord  Hardwicke  says,  in  Roach  w  Garvan,  Re  Read  cO  Iluggonson, 

2  Atk.  469  ;  2  Dick.  794  :— 

"  There  are  three  different  sorts  of  contempt. 

"  One  kind  of  contempt  is,  scandalizing  the  Court  itself. 

"  There  may  be  likewise  a  contempt"  of  this  Court  in  abusing 
parties  who  are  concerned  in  causes  here. 

"  There  may  be  also  a  contempt  of  this  Court,  in  prejudicing  man- 
kind against  persons,  before  the  cause  is  heard. 

"  There  cannot  be  anything  of  greater  consequence,  than  to  keep 
the  streams  of  justice  clear  and  pure,  that  parties  may  proceed  with 
safety  both  to  themselves  and  their  characters." 

In  all  such  cases  a  Superior  Court  may  interfere  summarily  to 
protect  itself,  and  fine  the  offender  or  commit  him  to  prison  proprio 
motu  ;  and  this,  although  no  indictable  offence  has  been  committed. 
(Per  Lord  Holt,  C.  J.,  in  R.  v.  Rogers,  7  Mod.  29.)  Any  further  or 
threatened  publication  may  be  restrained  by  injunction.  (See  ante, 
p.  337.)  An  application  either  for  such  an  injunction  or  to  commit 
for  contempt  must  be  made  promptly,  and  it  will  be  refused  if  the 
applicant  has  himself  invited  or  commenced  public  discussion  of  the 
matter  in  the  public  press.  (Daw  v.  Eley,  L.  R.  7  Eq.  49  ;  38  L. 
J.  Ch.  113  ;  17  W.  R.  245.) 

(445) 


374  SEDITIOUS   WORDS. 

Illustrations. 

Even  the  prisoner  in  the  dock,  who  is  always  allowed  great  latitude,  if  he  he 
defending  himself,  may  he  fined  for  contempt  of  court,  if  he  persist  in  using 
blasphemous  language  and  in  applying  offensive  epithets  to  the  presiding  judge 
in  the  course  of  his  speech  to  the  jury.  The  learned  judge  remitted  the  lines  at 
the  beginning  of  his  summing-up  to  the  jury. 
R.  v.  Davison,  4  B.  &  Aid.  329. 
[*495]  So,  too,  a  barrister  may  be  guilty  of  contempt  of  court,  if  he 
unnecessarily  insults  one  of  the  jury  in  the  course  of  his  address  to  them. 

In  re  Pater,  5  B.  &  S.  299  ;    33  L.  J.  M.  C.  142  ;    12  W.  li.  823  ;  10 
L.  T.  376. 
The  most  innocent  words,  if  uttered  in  a  peculiar  manner  and  tone,  may  be 
a  contempt  of  court.     For  an  insult  may  be  conveyed  either  by  language  or  by 
manner. 

Carvs  Wilson's  Case,  7  Q.  B.  984,  1015. 
If  a  high  sheriff  proceeds  to  address  the  grand  jury  in  open  Court  at  the 
close  of  the  judge's  charge,  and  persists  in  so  doing,  though  ordered  by  the 
judge  to  sit  down  and  be  quiet,  he  may  be  fined  £500  for  contempt. 
In  re  The  High  Sheriff  of  Surrey,  2  F.  &  F.  234,  237. 
To  beat  and  kick  the  officer  of  the  Court  who  serves  a  subpcena,  and  to  compel 
him  to  eat  the  wax  and  parchment  thereof,  is  a  contempt,  punishable  by  com- 
mittal. 

Williams  v.  Johns  (1773),  cited  in  the  note  to  Elliot  v.  Halmarack, 
1  Mer.  303. 
So  is  merely  using  abusive  and  violent  language  towards  any  person  serving 
the  process  of  any  Court. 

Price  v.  Hutchison,  L.  R.  9  Eq.  534  ;  18  W.  R.  204. 
'  B.  v.  Jones  (1719),  1  Stra.  185. 
It  is  a  contempt  of  court  and  a  libel,  punishable  by  attachment,  to  publish  a 
pamphlet  asserting  that  judges  have  no  power  to  issue  an  attachment  for  libels 
upon  themselves,  and  denying  that  reflections  upon  individual  judges  are  con- 
tempts of  court  at  all. 

R.  v.  Almon,  Wilmot's  Notes  of  Opinions  and  Judgments,  p.  253. 
Any  attempt  to  bribe  a  judge,  or  to  influence  his  probable  decision  on  a 
matter  before  him  by  any  private  communication,  is  a  contempt  of  court. 
Martin's  Case,  2  Russ.  &  Mylne,  674,  n. 
Macgill's  Case,  2  Fow.  Ex.  Ft.  404. 
But  not  every  silly  or  impudent  letter  addressed  to  a  judge  about  a  matter 
which  he  has  decided  will  be  treated  as  a  contempt. 

R.  v.  Faulkner,  2.Mont.  &  Ayr.  321,  322  ;  2  C.  M.  &  R.  525  ;  1  Gale, 
210. 
Nor  every  inaccurate  report  of  judicial  proceedings  which  either  party  may 
think  fit  to  publish. 

Matthews  v.  Smith,  3  Hare,  331. 

Brook  v.  Evans,  29  L.  J.  Ch.  616  ;  6  Jur.  N.  S.  1025 ;  8  W.  R.  688. 
Buenos  Ay  res  Gas  Co.  v.  Wilde,  29  W.  R.  43  ;  42  L.  T.  657. 
To  preach  a  sermon  with  special  reference  to  a  pending  trial  is  a  contempt  of 
court. 

Mackctt  v.  Heme  Bay  Commissioners,  24  W.  R.  845  ;  ante,  p.  338.  _ 
As  to  exhibiting  models  of  the  person  murdered  and  the  alleged  murderer  in 
the  assize  town  during  the  assizes,  see 

R.  v.  Gilham,  1  Moo.  &  Mai.  165. 
It  is  a  contempt  for  a  party  to  a  suit  to  publish  before  the  case  has  come  on 
for  hearing  a  copy  of  his  brief,  or  even  an  abstract  of  his  petition  or  statement 
of  claim,  or  of  the  affidavits  filed  on  either  side,  or  any  other  ex  parte  statement 
[*496]  tending  to  prepossess  the  minds  of  the  public  in  his  favour,  or  to  calum- 
niate his  adversary. 

Captain  Perry's  Case,  cited  2  Atk.  469  ;  2  Dick.  794. 
Mrs.  Farley's  Case,  Cann  v.  Cann,  2  Vesey,  senr.  520  ;  3  Hare,  333,  n. 
Coleman  v.  West  Hartlepool  Harbour  and  Railway  Co.,  8  W.  R.  734  ; 
2  L.  T.  766. 

(446) 


CONTEMPT    OF    COURT.  375 

A  petition  for  winding  up  a  company,  containing  charges  of  fraud  against 
the  directors,  was  published  in  extenso  in  a  newspaper  before  the  hearing  of  the 
petition.  This  was  held  a  contempt  of  court,  and  the  publishers  of  the  paper 
were  ordered  to  pay  the  costs  of  a  motion  to  commit  them. 

In  re  The  Cheltenham  &  Swansea  Waggon  Co.]  L.  II.  8  Eo.  580 ;  38 

L.  J.  Ch.  330  ;  17  W.  R.  463 ;  20  L.  T.  169. 
Tiehborne  v.  Mostyn,  L.  R.  7  Eq.  55,  n.  ;  15  W.  R.  1072  ;  17  L.  T.  5, 
And  see  Kiteat  v.  Sharp,  52  L.  J.  Ch.  134  ;  31  W.  R.  227  ;  48  L.  T. 

64  ;  W.  N.  (1882).  183. 
Bowden  v.  Russell,  46  L.  J.  Ch.  414 ;    36  L.  T.  177  ;  Weekly  Notes 
(1877),  55. 
Any  article  in  a  newspaper  commenting  on  a  case  still  before  the  Court  is  a 
contempt,  if  it  in  any  way  tends  to  pervert  the  course  of  justice,  though  written 
temperately  and  respectfully,  and  in  all  other  respects  such  an  article  as  might 
properly  and  legitimately  be  written  and  published  after  the  trial  is  ended. 
R.  v.  Clement,  4  B.  &  Aid.  218  ;  11  Price,  69. 
Littler  v.  Thompson,  2  Beav.  129. 

Roach  v.  Garvan,  Re  Read  &  Huggonson,  2  Atk.  469 ;    2  Dick.  794. 
Tiehborne  v.  Mostyn  per  Wood,  V.-C,  L.  R.  7  Eq.  57,  n.  ;  15  W.  R. 

1074  ;  17  L.  T.  7. 
Tiehborne  v.  Tiehborne,  39  L.  J.  Ch.  398  ;  18  W.  R.  621  ;  22  L.  T.  55. 
Vernon  v.  Vernon,  40  L.  J.  Ch.  118 ;    19  W.  R.  404  ;   23  L.  T.  697. 
Buenos  Ayres  Gas  Co.  v.  Wilde,  29  W.  R.  43  ;  42  L.  T.  657. 
Robertson  v.  Laboueliere,  42  J.  P.  710. 
The  publication  in  a  newspaper  of  a  correct  report  of  proceedings  before  a 
police  magistrate  which  terminated  in  the  committal  of  the  prisoners  is  not  a 
contempt  of  court,  though  it  may  tend  to  prejudice  the  mind  of  the  public 
against  the  prisoners.     But  the  publication  in  a  newspaper  of  comments  on 
such  proceedings,  and  on  the  conduct  of  the  prisoners,  is  a  contempt  of   court, 
if  it  tends  in  any  way  to  prejudice  the  public  mind  against  them  before  the  trial. 
R.  v.  Gray  (ISQ5),  10  Cox,  C.  C.  184. 
R.  v.  0"Dogherty  (1848),  5  Cox,  C.  C.  348. 
An  injunction  having  been  granted  to  restrain  the  defendants  from  infringing 
a  patent  for  nickel-plating,  they  gave  notice  of  appeal,  and  published  in  a  news- 
paper an  advertisement  inviting  the  trade  to  subscribe  towards  the  expenses  of 
the  appeal,  and  also  an  advertisement  offering  a  reward  of  £100  to  anyone  who 
could  produce  documentary  evidence  that  nickel-plating  was  done  before  1869. 
It  was  held  that  neither  advertisement  was  a  contempt  of  court. 

Plating  Co.  v.  Farquharson,  (C.  A.)  17  Ch.  D.  49  ;  50  L.  J.  Ch.  406  ; 

29  W.  R.  510  ;   44  L.  T.  389  ;   45  J.  P.  568  ;   overruling   Pool  v. 

Saeheverel,  1  P.  Wms.  675. 

But  where  a  co-respondent  in  a  suit  for  divorce,  immediately  after  the  service 

[*497]  of  the  citation,  caused  advertisement.  .,o  be  published  denying  the  charges 

made  in  the  petition,  and  offering  a  reward  for  information  which  would  lead 

to  the  discovery  and  conviction  of  the  authors  of  them,  it  was  held  that  these 

advertisements  constituted  a  contempt  of  court. 

Brodribb  v.  Brodribb  &  Wall,  11  P.  D.  66  ;  55  L.  J.  P.  D.  &  A.  47  ; 
34  W.  R.  580  ;  50  J.  P.  407. 
So  it  is  a  contempt  for  the  solicitor  to  a  defendant  to  publish  in  a  newspaper 
anonymous  letters  full  of  arguments  in  the  defendant's  favour,  and  denying  the 
facts  on  which  the  plaintiff  would  rely  at  the  trial. 

Daw  v.  Eley,  L.  R.  7  Eq.  49  ;  38  L.  J.  Ch.  113  ;  17  W.  R.  245. 
The  publisher  of  a  newspaper  was  committed  for  printing  an  article  which 
attacked  the  persons  who  had  made  affidavits  in  a  suit  in  Chancery  not  yet  con- 
cluded, imputing  to  them  ignorance  of  facts  and  interested  motives. 

Felkin  v.  Herbert,  33  L.  J.  Ch.  294  ;  12  W.  R.  241,  332  ;  9  L.  T.  635; 

10  Jur.  N.  S.  62. 
See  also  Littler  v.  Thompson,  2  Beav.  129. 
In  re  William   Watson,  Shaw's  Case  (Scotch),  No,  6. 
Still  more  it  is  a  contempt  of  court  for  one  committed  for  trial  for  perjury, 
or  for  any  of  his  partisans,  to  address  public  meetings,  alleging  that  there  is  a 
conspiracy  against  him,  and  that  he  will  not  have  a  fair  trial. 

(447) 


376  SEDITIOUS    WORDS. 

Castro,  Onslow  <fe  Whalley's   Case.  L.  R.  9  Q.  B.  219  ;  12  Cox,  C.  C, 

358. 
Skipworth's  Case,  L.  R.  9  Q.  B.  430  ;  12  Cox,  C.  C.  371. 
Threats  and  instills  addressed  cither  to  a  party  or  a  witness  pending  a  suit, 
whether  by  word  or  letter,  are  a  contempt  of  court. 

Smith  v.  Lake, nan,  2G  L.  J.  Ch.  305;  2  Jur.  N.  S.  1202;  28  L.  T. 

(Old  S.)  98. 
Shaw  v.  Shaw,  31  L.  J.  Pr.  &  Matr.  35  ;  6  L.  T.  477  ;  2  Sw.  &  Tr. 

515 
Be  v.  'Mulock,  33  L.  J.  Pr.  &  Matr.  205  ;  10  Jur.  N.  S.  1188  ;  13  W. 
278. 
So  are  insulting  words  addressed  to  counsel  engaged  in  the  cause. 

Lessee  Sturgeon  v.  Douglass,  10  Ir.  L.  R.  128,  u. 
A  fortiori,  if  addressed  to  the  judge  or  a  master. 

Lechmere  Charlton's  Case,  2  Myl.  &  Cr.  316. 
It  is  a  contempt  of  court  for  the  brother  of  a  prisoner  just  convicted  to  call 
on  the  foreman  of  the  jury,  accuse  him  of  having  bullied  the  jury  into  finding 
his  brother  guilty  and  challenge  him  to  mortal  combat. 
R.  v.  James  Martin,  5  Cox,  C.  C.  356. 
So  the  solicitor  for  the  defeated  party  will  be  guilty  of  a  contempt,   if,  even 
when  the  case  is  over,  he  publishes  a  pamphlet   describing  the  judgment  pro- 
nounced as  "  an  elaborate  production,  wholly  beside  the  merits  of  the   case," 
with  other  flippant  and  contumacious  observations. 

Ex  parte  Turner,  3  Mont.  D.  &  De  G.  523,  551,  558. 
The  committee  of  a  lunatic  published  a  pamphlet,  written  by  his  wife,  reflect- 
in°-  upon  persons  who  were  managing  the  lunatic's  estate  under  the  orders  of  the 
Court  of  Chancery,  with  an  address,  by  way  of  dedication,  to  the  Lord  Chan- 
[*498]  cellor,  "  nattering  the  judge  to  taint  the  source  of  justice."  Lord  Erskine, 
L.  C,  committed  him  to  prison  for  contempt,  and  the  printer  as  well. 
Ex  parte  Jones,  13  Ves.  237. 
Where  the  Court  of  Bankruptcy  has  appointed  a  receiver  to  take  and  hold 
possession  of  a  bankrupt's  property  it  is  a  contempt  of  court  for  the  holder  of 
even  a  valid  bill  of  sale  to  forcibly  oust  the  receiver. 

Ex  parte  Cochrane,  In  re  Mead,  L.  R.  20  Eq.  282  ;  44  L.  J  Bkcy.  87; 

23  W.  R.  726  ;  32  L.  T.  508. 
And  see  In  re  Fells,  Ex  parte  Andrews,  4  Ch.  D.  509  ;  46  L.  J.  Bkcy. 

23  ;  25  W.  R.  382  ;  36  L.  T.  38. 
And  Ex  parte  Drake,  In  re   Ware,  5  Ch.  D.  866  ;  46  L.  J.  Ch.  105  ; 
25  W.  R.  641  ;  36  L.  T.  677. 
In  an  action  for  dissolution  of  [a  partnership,  the  defendant  was  appointed 
receiver  and  manager  to  carry  on  the  business  pending  the  appeal.     The  plain- 
tiff's son,  II.  W.  Helmore,  had  formerly  been  a  clerk  in  the  employment  of  the 
firm,  but  had  now  set  up  a  rival  business  of  his  own.     While  such  clerk,  he 
had  been  furnished  with  a  list  of  the  customers  of  the  firm,  which  he  had  taken 
away  with  him.     He  now  sent  out  to  each  of  the  customers  on  that  list  a  cir- 
cular containing  a  report  of  the  dissolution  proceedings  and  of  the  appointment 
of  the  defendant  as  receiver,  which  was  accurate  in  the  main,  but  conveyed  the 
impression  that  the  business  was  being  wound  up,  whereas  the  defendant  had 
been  appointed  manager  expressly  in  order  that,  he  might  keep  the   business 
together  as  a  going  concern  till  the  suit  was  ended.     The  circular  then  stated 
that  while  H.  W.  Helmore  was  in  the  employment  of  the  firm  the  customers' 
orders  had  come  under  his  personal  supervision,  and  concluded  by   soliciting 
their  custom  for  his  own  business.     The  Court  of  Appeal  (affirming  Kay,  J.) 
held  that  the  circular  was  misleading  and  unfair  and  a  libel  on  the  business, 
and  likely  to  prejudice  the  receiver  in  his  management  of  it,  and  that  it  was 
therefore  a  contempt  of  court  for  which  H.W.  Helmore  was  liable  to  be  attached 
Helmore  v.  Smith,  (C.  A.)  56  L.  J.  Ch.  145  ;  35  W.  R.  157  ;  56  L.  T. 
72. 

Wilful  disobedience  to  any  lawful  order  of  a  court  or  a  judge  is 
a  contempt,  especially  if  on  being  served  with  a  copy  of  the  order 
the  party  expresses  iii  defiant  and  contemptuous  language  his  inten- 

(448) 


ATTACHMENT    AND    COMMITTAL.  377 

tion  to  disregard  such  order.  (Anon.  ( 1 V 1 1 ),  1  Salk.  94;  R.  v. 
Clement,  4  B.  &  Aid.  218  ;  Mr.  Long  Wellesley's  Case,  2  Russ.  & 
Mvlne,  639  ;•  Hudson  v.  Tooth,  2  P.  D.  125  ;  35  L.  T.  820;  Martin 
v.  Mackonochie,  3  Q.  B.  D.  730  ;  Combe  v.  Edwards,  3  P.  D.  103.) 
But  where  the  defendant  bond  fide  desires,  but  is  irt  fact  unable,  to 
obey  the  order  of  the  Court,  such  disobedience  is  not  wilful, 
and'  is  not  a  contempt.  (Clare  v.  BlaJcesley  and  others,  8 
Dowl.  835.)  Where,  however,  a  person  ordered  to  per  [*499]  form 
a  particular  act,  purposely  puts  it  out  of  his  power  to  obey  with  a 
view  of  evading  the  order  of  the  Court,  such  conduct  is  an  aggrava- 
tion of  his  original  offence  in  disobeying,  and  is  in  itself  a  contempt 
of  court. 

If  a  plaintiff  be  guilty  of  such  contempt,  he  is  liable,  in  addition 
to  fine  or  imprisonment,  to  have  all  proceedings  stayed,  or  even  the 
whole  action  dismissed,  and  money  paid  into  Court  returned  to  the 
defendant.  (Republic  of  Liberia  v.  Roi/e,  1  App.  Cas.  139  ;  45  L. 
J.  Ch.  297  ;  24  W.  R.  967  ;  34  L.  T.  145.)  A  true  copy  of  the 
order  of  the  Court  must  as  a  rule  be  served.  (Ln  re  Llolt,  11  Ch. 
D.  168  ;  27  W.  R.  485  ;  40  L.  T.  207.)  If,  however,  at  the  time  of 
disobedience  the  offender  has  from  any  reasonable  source  knowledge 
that  the  order  has  been  made,  it  is  immaterial  that  the  order  has 
not  yet  been  duly  served.  Notice  bv  telegram  may  be  sufficient. 
(In  re  Bryant,  4  Ch.  D.  98  ;  25  W.  R.  230  ;  35  L.  f .  489  ;  Exparte 
Langley,  Exparte  Smith,  In  re  Bishop,  13  Ch.  D.  110  ;  49  L.  J. 
Bkcy.  1  ;  28  W.  R.  174  ;  41  L.  T.  388.) 

Formerly  there  was  a  sharp  distinction  between  committal  and 
attachment.  Committal  was  the  proper  punishment  for  doing  a 
prohibited  act,  and  attachment  for  neglecting  to  do  some  act  ordered 
to  be  done.  But  now  for  all  practical  purposes  the  distinction  has 
been  abolished.  A  writ  of  attachment  still  issues  to  the  sheriff, 
while  an  order  for  committal  is  placed  in  the  hands  of  the  tipstaff 
of  the  Court.  "  A  person  committed  by  the  Court  is  unable  to  be 
bailed  out,  whereas  under  a  writ  of  attachment  the  sheriff  may 
accept  bail."  (Per  Jessel,  M.  R.,  in  Buist  v.  Bridge,  43  L.  T.  432  ; 
29  W.  R.  117.)  Under  the  former  practice  it  was  not  necessary  to 
serve  notice  of  motion  for  attachment.  But  since  the  Judicature 
Acts  the  old  practice  has  been  altered.  Neither  attachment  nor 
committal  can  now  be  obtained  by  a  litigant  without  notice  of 
motion.  And  if  such  notice  of  motion  ask  for  a  writ  of  attachment 
where  committal  is  the  proper  remedy,  the  judge  will  amend  it. 
(Callow  v.  Young,  56  L.  T.  147— Chitty,  J.) 

The  officer  charged  with  the  execution  of  a  writ  of  attachment 
may  break  open  the  outer  door  of  the  defendant's  house  in  order  to 
arrest  him  (Harvey  v.  Harvey,  26  Ch.  D.  644  ;  32  W.  R.  76  ;  51 
L.  T.  508  ;  48  J.  P.  468) — an  attachment  for  contempt  being  a 
criminal  and  not  civil  process.  (In  re  Ereston,  (C.  A.)  11  Q.  B.  D. 
545  ;  52  L.  J.  Q.  B.  545  ;  31  W.  R.  581,  804  ;  49  L.  T.  290  ;  In  re 
Dudley,  (C.  A.)  12  Q.  B.  D.  44  ;  53  L.  J.  Q.  B.  16  ;  32  W.  R.  264  ; 
49  [*500]  L.  T.  737  ;  In  re  Strong,  (C.  A.)  32  Ch.  D.  342  ;  55  L. 
J.  Ch.  553  ;  34  W.  R.  614  ;  55  L.  T.  3.) 

(449) 


3*78  SEDITIOUS    WORDS. 

Illustrations. 

A  trustee  was  ordered  to  pay  £94  14s.  into  Court :  on  the  same  day  he  was 
adjudicated  a  bankrupt  :  the  Court  refused  to  attach  him  for  disobedience  to 
the  order. 

Cobham  v.  Bolton,  L.  R.  10  Ch.  App.  655  ;  44  L.  J.  Ch.  702  ;  23  W. 

R.  865. 
See  also  Earl  of  Lewes  v.  Barnett,  6  Ch.  D.  252  ;    47  L.  J.  Ch.  144 ; 

26  W.  R.  101. 
Pashler  v.  Vincent,  8  Ch.  D.  825  ;  27  W.  R.  2. 
The  defendant  had  illegally  removed  a  quantity  of  human  bones  and  earth 
from  the  parish  burial  ground  of  Chew  Magna  to  his  own  field.  The  Court  of 
Arches  issued  a  monition  to  him  to  replace  them.  In  the  meantime,  the  defend- 
ant, on  the  marriage  of  his  daughter  to  a  Mr.  Bromfield,  conveyed  this  field  and 
other  land  to  the  trustees  of  the  marriage  settlement,  and  it  was  argued  that  the 
defendant  was  unable  to  obey  the  order  of  the  Court,  as  he  no  longer  either 
owned  or  occupied  the  field,  "and  it  was  further  pretended  that  Mr.  Bromfield 
refused  to  allow  his  father-in-law  to  enter  on  the  field  and  remove  the  bones. 
The  Court  of  Arches  pronounced  the  defendant  guilty  of  contumacy  and  con- 
tempt.    The  bones  were  replaced  within  six  days. 

Adlam  v.  Colthurst,  L.  R.  2  Adm.  &  Eccl.  30 ;  36  L.  J.  Ec.  Ca.  14. 
An  advocate  at  Aberdeen  snatched  a  petition  from  the  Clerk  of  the  Court ; 
the  sheriff -substitute  remonstrated  and  warned  him  he  was  committing  a  con- 
tempt of  court  ;  but  the  advocate  put  the  petition  in  his  pocket  and  imme- 
diately left  the  Court.  The  sheriff-substitute  thereupon  issued  a  warrant 
ordering  him  to  deliver  up  the  document  on  pain  of  imprisonment.  As  soon 
as  the  sheriff's  officers  entered  the  advocate's  office,  and  demanded  the  petition, 
the  advoeate  threw  it  into  the  fire.  The  officers  thereupon  immediately  seized 
and  imprisoned  him.  In  an  action  brought  by  the  advocate  for  false  imprison- 
ment, held  by  the  House  of  Lords,  that  the  arrest  was  perfectly  lawful  under 
the  circumstances. 

Watt  v.  Ligerticood  &  another,  L.  R.  2  Sc.  App.  3G1. 

If  the  contempt  is  committed  in  open  court  and  in  presence  of  the 
judge,  he  may  commit  the  offender  instanter,  and  without  any  prior 
notice.  (Gascoyne,  C.  J.,  thus  committed  the  Prince  of  Wales  in 
1406.  See  L.  R.  2  Sc.  App.  367,  n.)  And  I  presume  this  power  is 
not  taken  away  by  Order  XLIV.  r.  2.  A  written  warrant  is  not 
essential  to  such  a  committal,  though  it  is  usual.  (Per  Wiglitman, 
J.,  in  Cams  Wilson's  Case,  7  Q.  B.  1017.) 

But  when  the  offender  is  not  present,  and  the  contempt  is  com- 
mitted by  words  spoken  or  published  out  of  Court,  it  is  usual  to 
grant  first  a  rule  nisi  calling  on  the  offender  to  show  cause  why  an 
attachment  should  not  be  granted  against  him  ;  although  the  Court 
still  may,  and  [*50l]  in  flagrant  cases  will,  on  clear  and  satisfactory 
evidence,  grant  an  attachment  in  the  first  instance,  and  issue  its 
warrant,  so  that  the  offender  shall  answer  for  his  contempt  in  cus- 
tody. Anon.  (1711),  1  Salk.  94  ;  R.  v.  Jones  (1719,  1  Stra.  185.) 
The  rule  nisi  is  granted  on  affidavit  of  the  fact,  though  the  Court 
may  proceed  on  its  own  knowledge,  without  any  suggestion.  (In 
re  'The  High  Sheriff  of  Surrey,  2  F.  &  F.  236  ;  Skipworth's  and 
Castro's  Cases,  L.  R.  9  Q.  B.  230;  12  Cox,  C.  C.  358.)  If  the 
offender  fails  to  appear  and  show  cause,  a  warrant  may  issue  for  his 
apprehension  (Lechmere  Charlton's  Case,  2  Myl.  &  Cr.  316)  ;  or  he 
maybe  fined  in  his  absence.     (P.  v  Clement,  4  B.  &  Aid.  218.) 

When  the  offender  was  brought  before  the  Court,  it  was  formerly 
the  custom  to  adjourn  the  matter  for  four  days,  in  order  that  inter- 

(450) 


COMMITTAL.  379 

rogatories  might  be  exhibited  against  him,  which  lie  was  compelled 
to  answer  on  oath.  But  now  it  is  usual  to  dispense  with  all  inter- 
rogatories ;  the  offender  at  once  shows  what  cause  he  can,  and  en- 
deavours to  purge  his  contempt  with  the  aid  of  ordinary  affidavits. 
If  the  Court  is  not  satified,  it  may  commit  him  to  prison  for  a  time 
certain,  or  may  impose  a  fine,  or  may  do  both  ;  and  in  every  ease 
the  Court  may  further  order  the  offender  to  pay  the  costs  of  the  pro- 
ceedings. (Martin's  Case,  2  Russ.  &  Myl.  674,  n.)  But  the  costs 
are  of  course  in  the  discretion  of  the  Court,  and  will  not  be  granted 
where  the  proceedings  are  clearly  vexatious,  and  the  party  institu- 
ting them  is  himself  to  blame.  (  Vernon  v.  Vernon,  40  L.  J.  Ch. 
118  ;  19  W.  R.  404  ;  23  L.  T.  G97.)  The  costs  should  be  asked  for 
when  the  rule  is  argued  (Abud  v.  Riches,  2  Ch.  D.  528  ;  45  L.  J. 
Ch.  649  ;  24  W.  R.  637  ;  34  L.  T.  713)  ;  and  in  cases  where  the 
contempt  is  slight  or  unintentional,  and  the  offender  submits  himself 
to  the  Court,  and  has  done  all  in  his  power  to  clear  his  contempt,  the 
Court  often  makes  no  other  order  except  that  he  pay  the  costs  of 
the  motion.     (See  L.  R.  7  Eq.  58,  n.) 

The  commitment  must  be  for  a  time  certain.  (R.  v.  James,  5  B. 
&  Aid.  894  ;  Green  v.  Elgie  and  another,  5  Q.  B.  99.)  But  in  all  other 
respects  the  warrant  may  be  in  general  terms  :  no  special  grounds 
need  be  stated  ;  nor  need  the  facts  which  are  the  cause  of  the  arrest 
be  specified  :  it  is  sufficient  to  state  the  offender  is  committed  for 
contempt  of  court.  (Howard  v.  Gosset,  10  Q.  B.  411  ;  Ex  parte 
Fernandez,  6.  H.  &.  N.  717  ;  10  C.  B.  N.  S.  3.)  Two  lines  are  suffi- 
cient (R.  v.  Rati/,  2  Lord  Raym.  1108),  and  will  justify  the  officer 
of  the  Court  in  arresting  the  offender,  and  protect  him  from  any  ac- 
tion of  false  imprisonment.  It  is  presumed  that  the  Court  was  act- 
ing regularly  and  rightly,  unless,  indeed,  the  contrary  [*502]  appears 
expressly  on  the  face  of  the  writ.  (R.  v.  Evans  and  another,  8 
Dowl.  451.)  And  the  decision  of  the  judge  committing  cannot  be 
reviewed  by  any  other  court.  (Burdett  v.  Abbot,  14  East,  1  ;  Stock- 
dale  v.  Hansard, per  Littledale,  J.,  9  A.  &  E.  169  ;  Cams  Wilson's 
Case,  per  Lord  Denman,  C.  J.,  7  Q.  B.  1008).  If  a  fine  is  inflicted  it 
is  usual  to  add  a  sentence  of  imprisonment  till  the  fine  be  paid,  in 
addition  to  any  other  term  of  imprisonment  that  may  have  been  in- 
flicted. (L.  R.  *9  Q.  B.  228,  229,  240.)  Where  the  period  for  which  the 
offender  is  to  be  detained  is  expressed  in  the  margin  of  the  writ,  or 
may  be  gathered  from  it  by  necessary  inference,  the  gaoler  should 
discharge  the  prisoner  at  the  end  of  that  period.  (Moone  v.  Rose, 
L.  R.  4^Q.  B.  486  ;  38  L.  J.  Q.  B.  236.)  But  if  the  warrant  dees  not 
state  the  period  for  which  he  is  apt  to  be  kept  in  custody,  nor  refer 
to  the  nature  of  the  contempt  committed,  the  gaoler  should  not  re- 
lease him  without  an  order  of  the  Court.  (  Greaves  v.  Keene,  4  Ex. 
D.  73  ;  27  W.  R.  416  ;  40  L.  T.  216  ;  Mb  Combe  v.  Gray,  4  L.  R. 
(Ir.)  432.)  When  the  period  assigned  comes  to  an  end,  the  offender 
may  not  be  detained  in  custody  merely  for  the  costs  of  the  applica- 
tion to  the  Court  to  commit,  (Jackson  v.  Mawby,  1  Ch.  D.  86  ;  45 
L.  J.  Ch.  53  ;  24  W.  R.  92;  Hudson  v.  Tooth,  2  P.  D.  125  ;  35  L.  T. 
820.)  A  fortiori  where  condemnation  in  costs  is  the  only  punishment 
inflicted,  the  Court  has  no  power  subsequently  to  commit  to  prison 

(451) 


380  SEDITIOUS    WORDS. 

for  default  in  payment.  (Mickeethwaite  v.  Fletcher,  27  W.  R.  793  ; 
Weldon  v.  Weldon,  10  P.  D.  72  ;  54  L.  J.  P.  &  D.  20,  GO  ;  33  W. 
R.  370,  427  ;  52  L.  T.  233  ;  40  J.  P.  517.) 

The  words  "  Superior  Court "  include  the  House  of  Lords,  the  Judi- 
cial Committee  of  the  Privy  Council,  the  Court  of  Appeal,  the  High 
Court  of  Justice  and  any  Divisional  Court  thereof,  and  any  judge  of 
any  Division  sitting  in  Court  alone  (Jud.  Act,  1873,  s.  89).  Also 
any  Commissioner  of  Over  and  Terminer,  Assize,  Gaol  Delivery,  and 
Nisi  Prius.  (Ex parte  Fernandez,  6  H.  &  N.  717  ;  10  C.  B.  N.  S.  3; 
30  L.  J.  C.  P.  321  ;  7  Jur.  N.  S.  529,  571  ;  9  W.  R.  832  ;  4  L.  T. 
296,  324  ;  In  re  McAleece,  Ir.  R.  7  C.  L.  146.)  And  the  Superior 
Courts  of  Law  and  Equity  in  Dublin,  and  the  Court  of  Session  in 
Scotland. 

But  whether  a  judge  sitting  at  chambers  is  "a  Superior  Court," 
f*  503]  and  has  such  power  to  commit  for  contempt,  may  well  be 
doubted.     Wilmot,  C.  J.,  was  clearly  of   opinion  that  a   judge  at 
chambers  had  such  a  power,  as  appears  by  the  very  learned  judg- 
ment which  he  intended  to  deliver  in  R.  v.  Almon  (Wilmot's  Opin. 
and  Judgments,  253),  but  it  was  not  delivered  in  fact,  the  case 
having  dropped  on  the  resignation  of  the  then  Attorney-General, 
Sir  Fletcher  Norton.     But  there  is  no  instance  reported  of  a  judge 
at  chambers  himself  inflicting  fine  or  imprisonment.    He  invariably 
reports  any  insult  offered  to  him  at  chambers  to  the  full  Court,  and 
leaves  it  to  the  Court  to  punish  the  offender.     And  in  R.  v.  Faulk- 
ner (2  Mont,  &  Ayr.  338  ;    2   C.  M.  &  R.  533  ;   1  Gale,  215),  Lord 
Abinger,  C.  B.,  states  most  distinctly  that  a  judge  at  chambers  has 
no  power  to  commit  for  contempt.     Sect.  39  of  the  Jud.  Act,  1873, 
seems  in  no  way  to  enlarge  the  powers  of  a  judge  at  chambers  ;  and 
its  concluding  sentence  certainly  implies  that  a  judge  at  chambers 
is  not  "a  Court,"  and  in  so  far  confirms  Lord  Abinger's  opinion. 
In  the  analogous  case  of  the  Court  of  Review,  it  has  been  decided 
that  a  single  judge  has  no  power  to  commit  for  contempt,  except 
when  sitting  as  the  Court.     (Fx parte  Van  Sandau,  1  Phillips,  445  ; 
Van  Sandau  v.  Turner,  6  Q.  B.  773  ;  compare,  also,  In  re  Ramsay, 
L.  R.  3  P.  C.  427  ;    7  Moo.  P.  C.  C.  N.  S.  263  ;    Rainy  v.  Justices 
of  Sierra  Leone,  8  Moo.  P.  C.  C.  47  ;  Macartney  v.  Corry,  7  Ir.  R. 
C.  L.  242.)     Hence  the  better  opinion  appears  to  be  that  a  judge  at 
chambers  cannot  safely  commit  summarily  for  a  contempt  of  him- 
self ;  although,  of  course,  he  constantly  issues  at  chambers  writs  of 
attachment  after  notice  to  the  party  in  default  under  Order  XLIV. 
(See  Salm-Kyrburg  v.  Posnanski,  13  Q.  B.  D.  218  ;  53  L.  J.  Q.  B. 
428  ;   32  W.  R.  752.) 

And  d  fortiori  no  official  or  special  referee  (Jud.  Act,  Order 
XXXVI.  r.  51),  and  no  arbitrator  (3  &  4  Will.  IV.  c.  42,  s.  40) 
can  commit  for  contempt. 

„  The  Colonial  Courts  of  Record  are  also  Superior  Courts,  and 
possess  the  power  of  instantly  committing  for  contempt  in  all  the 
above  cases  ;  and  no  appeal  lies  from  such  a  commitment  to  the 
Privy  Council.     (Crawford's  Case,   13  Q.  B.  613  ;   18  L.  J.  Q.  B. 

(452) 


INFERIOR    COURTS.  381 

225  ;  13  Jur.  955  ;  In  re  McDermott,  L.  R.  1  P.  C.  200,  2  P.  C. 
341  ;  38  L.  J.  P.  C.  1  ;  20  L.  T.  47  ;  Hughes  v.  Porral  and  others, 
4  Moore,  P.  C.  C.  41.)  But  if  it  appear  on  the  face  of  the  writ 
that  the  Court  had  exceeded  its  jurisdiction  (In  re  Ramsay,  L.  R. 
3  P.  C.  427  ;  [*504]  7  Moore,  P.  C.  C.  N.  8.  203  ;  Rainy  v.  The 
Justices  of  Sierra  Leone,  8  Moore,  P.  C.  C.  47),  or  if  the  offender 
had  no  opportunity  given  him  of  defending  or  explaining  his  con- 
duct (In  re  Pollard,  L.  R.  2  P.  C.  100  ;  5  Moore,  P.  C.  C.  X.  S. 
Ill),  or  if  the  punishment  awarded  for  the  contempt  was  not  appro- 
priate to  the  offence  (Be  Wallace,  L.  R.  1  P.  C.  283  ;  36  L.  J.  P.  C. 
9  ;  15  W.  R.  533  ;  14  L.  T.  286  ;  Be  Downie  <b  Arrindt  11,  3  Moore, 
P.'C.  C.  414),  the  order  of  commitment  will  he  set  aside,  and  the 
fine  ordered  to  be  remitted,  by  the  Judicial  Committee  of  the 
Privy  Council  on  appeal.  But  if  it  sufficiently  appears  that  the 
prisoner  was  committed  for  contempt,  and  that  the  Court  had 
power  to  commit  for  such  contempt,  the  offender  cannot  be  heard 
to  say  that  such  contempt  was  not  in  fact  committed.  "  Every 
Court  in  such  a  case  has  to  form  its  own  judgment."  (Per  Lord 
Denman,  C.  J.,  in  Cams  Wilson 's  Case,  7  Q.  B.  1015.) 

When  a  competent  Court,  acting  clearly  within  its  jurisdiction, 
states  certain  matters  of  fact,  affidavits  are  not  admissible  to  con- 
tradict such  findings.  So  if  the  Colonial  Court  administers  a  dif- 
ferent system  of  law  from  ours,  affidavits  cannot  be  received  in 
England  to  show  that  the  Colonial  Court  was  acting  contrary  to 
its  °own  law.  The  English  Courts  must  "  give  full  credit  to  that 
Court  for  knowing  and  administering  their  own  law."  (Per  Lord 
Denman,  C.  J.,  mCarus  Wilson's  Case,  7  Q.  B.  1014.) 

(b)  Inferior  Courts. 

The  judge  of  an  inferior  Court  is  in  no  better  position  than  any 
other  public  character,  so  far  as  wrords  written  and  published  are 
concerned.  It  is  a  misdemeanour  to  write  and  publish  concerning 
him  in  the  execution  of  his  office  any  words  which  would  be  libellous 
and  actionable  per  se  if  written  and  published  of  any  other  public 
officer. 

[*  505]  It  is  not  indictable  to  speak  disrespectful  and  abusive 
words  of  the  judge  of  an  Inferior  Court  behind  his  back,  or  even 
to  his  face,  provided  he  be  out  of  court. 

But  it  is  indictable  to  speak  aloud  in  open  court  when  the  judge 
is  present  in  the  discharge  of  his  duty,  words  reflecting  upon  him 
in  his  official  capacity. 

Illustrations. 
It  is  indictable — 

to  give  the  lie  to  the  steward  of  a  manor  holding  a  court  leet, 

Earl  of  Lincoln  v.  Fisher,  Cro.  Eliz.  581  ;  Ow.  113  ;  Moore,  470  ; 
to  put  on  your  hat  in  the  presence  of  the  lord  of  a  court  leet  and  refuse  to 
take  it  off,  saying,  "  I  care  not  what  vou  can  do," 

Bathurst  v.  Goxe,  1  Keb.  451,  465  ;  Sir.  T.  Raym.  08  ; 
to  rise  up  in   court  and  say  to  the  justices  in  session,  "  Though  I  cannot 
have  justice  here,  I  will  have  it  elsewhere,"  • 

(453) 


382  SEDITIOUS    WORDS. 

R.  v.  Mayo,  1  Keb.  508  ;  1  Sid-  144  (although  TwisdenJ.,  mercifully 
endeavoured  to  construe  the  words  to  mean  merely,  "  I  propose  to 
appeal  from  your  decision.")  ; 
to  say  to  a  justice  of  the  peace  in  the  execution  of  his  office,  "  You  are  a 
rogue  and  a  liar," 

It.  v.  Bevel,  1  Str.  420  ; 
to  call  the  Mayor  of  Yarmouth  in  his  Court,  in  the  hearing  of  the  suitors,  a 
puppy  and  a  fool. 

Ex  'parte  TJie  Mayor  of  Yarmouth,  1  Cox,  C.  C.  122. 

But  it  is  not  indictable — 
to  call  a  justice  of  the  peace,  "a  logger-headed,  a  slouch-headed,  bursen- 
bellied  hound," 

R.  v.  Farre,  1  Keb.  629  ; 
Nor  to  say  that  a  justice  is  a  fool,  or  an  ass,  or  a  coxcomb,  or  a  blockhead,  or 
abufflehead.     Per  Holt,  C-  J.,  in 

R.  v.  Wrightson,  2  Salk.  698  ;  11  Mod.  166  ;  2  Roll.  Rep.  78  ;  4  Inst 
181  ; 
Nor  to  say  of  an  alderman  of  Hull,  that  ' '  Whenever  he  comes  to  put  on  his 
gown,  Satan  enters  into  him," 

R.  v.  Baker,  1  Mod.  35  ; 
Nor  to  say  of  a  justice  of  the  peace  in  his  absence  that  he  is  a  scoundrel  and 
a  liar.     Per  Lord  Ellenborough,  in 

R.  v.  Weltje,  2  Camp.  142 ; 

Nor  to  accuse  a  justice  of  partiality  or  corruption  unless  the  words  were 

uttered  at  a  time  when  the  magistrate  was  in  the  actual  execution  of  his  office, 

Ex  parte  The  Duke  of  Marlborough,  5  Q.  B.  955  ;  1  Dav.  &  Mer.  720  ; 

Nor  to  tell  a  borough  magistrate,  out  of  court  but  to  his  face,  that  he  is  a 

liar,  and  unfit  to  be  a  magistrate,  and  that  he  will  hear  the  same  every  time  he 

[*506]  came  into  town  ;  unless,  indeed,  the  words  can  be  construed  as  tending 

to  provoke  a  breach  of  the  peace. 

Ex  Parte  Chapman,  4  A.  &  E.  773. 

See  also  Anon.  (1650),  Style,  251. 

Simmons  v.  Sweete,  Cro.  Eliz.  78. 

Baggs'  Case,  11  Rep.  93,  95  ;  1  Roll.  Rep.  79,  173,  224. 

R.  v.  Burford,  1  Ventris,  16. 

R.  v.  Leaf,  Andrews,  226. 

R.  v.  Penny,  1  Ld.  Raymond,  153. 

R.  v.  Langley,  2  Ld.  Raymond,  1029  ;    2  Salk.  697  ;   6  Mod.  125 ; 

Holt,  654. 
R.  v.  Rogers,  2  Ld.  Raymond,  777  ;  7  Mod.  28. 
R.  v.  Nun,  10  Mod.  186. 
R.  v.  Granfield,  12  Mod.  98. 
R.  v.  Pocock,  2  Str.  1157. 
R.  v.  Burn,  7  A.  &  E.  190. 
These  cases  overrule  R.  v.  Darby,  3  Mod.  139  ;  Comb.  65  ;  Carth.  14. 

Thus  the  same  act  which  would  be  indictable  if  committed  with 
respect  to  a  Superior  Court  may  not  be  indictable  if  only  an  Infe- 
rior Court  is  concerned.  And  the  power  of  an  Inferior  Court  to 
deal  itself  with  such  contempts  is  again  still  further  restricted. 
For,  as  we  have  seen,  the  Superior  Courts  could  commit  to  prison 
in  many  cases  where  the  offence  is  not  indictable  ;  while  an  Inferior 
Court  cannot  commit  in  every  case  which  is  indictable,  and  certainly 
in  none  which  is  not.  (R.  v.  Revel,  1  Str.  420.)  Nor  can  the  High 
Court  of  Justice  commit  for  a  libel  which  is  a  contempt  of  an  In- 
ferior Court.  (Ex  parte  Burns,  Champion,  Hyndman,  and  Wil- 
liams, 2  Times  L.  R.  352.) 

(454) 


WARRANT    OF    COMMITTAL.  383 

An  Inferior  Court  of  record  can  only  commit  for  contempts  com- 
mitted in  open  court,  in  facie  curiae.  (B.  v.  Lefroy,Jj.  R.  8  Q.  B.  134; 
42  L.  J.  Q.  B.  121  ;  21  W.  R.  332  ;  28  L.  T.  132.)  The  judge  or 
coroner  must  at  the  moment  be  actually  discharging  his  duty  ;  and 
the  words  employed  or  act  done  must  either  be  pointedly  and  per- 
sonally disrespectful  to  the  judge  or  coroner  himself,  or  else  amount 
to  a  serious  obstruction  of  the  course  of  justice.  Before  actually 
committing,  the  judge  or  coroner  should  always  give  the  offender 
an  opportunity  of  explaining  his  [*  507]  conduct,  and  showing 
cause  why  he  should  not  be  committed. 

If  the  judge  or  coroner  does  commit,  he  must — in  the  absence  of 
any  special  custom  or  defined  practice  to  the  contrary — issue  a  war- 
rant in  writing,  and  duly  signed  ;  he  may  not  commit  by  word  of 
mouth,  as  a  judge  of  a  Superior  Court  may  sometimes  do.  {May- 
hew  v.  Locke,  7  Taunt.  63.)  Such  warrant  should  state  clearly  the 
cause  for  which  the  prisoner  was  committed  and  all  facts  necessary 
to  give  jurisdiction  to  commit.  Affidavits  are  inadmissible  to  con- 
tradict any  statement  of  fact  contained  in  the  warrant  (In  re  John 
Bea  (2),  4  L.  R.  Ir.  345  ;  14  Cox,  C.  C.  256)  ;  though  they  are 
admissible  to  show  want  of  jurisdiction.  (B.  v  Bolton,  12.  B.  73.) 
But  where  it  sufficiently  appears  that  the  prisoner  was  committed 
for  contempt,  and  the  court  had  power  on  the  facts  as  stated  by 
them  to  commit  for  such  contempt,  their  decision  cannot  be  re- 
viewed by  any  court.  (Cams  Wilson's  Case,  7  Q.  B.  984,  1014; 
Garnett  v.  Ferrand,  6  B.  &  Cr.  625  ;  R  v.' Bolton,  1  Q.  B.  73.) 
They  alone  can  judge  of  the  insult  offered  to  them.  Such  a  war- 
rant'will  justify  any  officer  of  the  Inferior  Court  in  arresting  the 
offender,  and  protect  him  from  anv  action  of  assault  or  false  im- 
prisonment. (Levy  v.  Moylcm,  19  'L.  J.  C.  P.  308  ;  1  L.  M.  &  P. 
307.) 

Illustrations. 

If  a  coroner  for  any  reason  (and  the  sufficiency  of  such  reason  is  a  matter 
entirely  for  the  coroner  in  the  exercise  of  his  discretion)  order  a  particular  per- 
son to  "quit  the  room  where  he  is  about  to  hold  an  inquest,  and  such  person 
wholly  refuse  to  go,  and  defiantly  continues  in  the  room  to  the  hindrance  of 
the  inquest,  the  coroner  may  lawfully  order  him  to  be  expelled. 
Garnett  v.  Ferrand,  6  B.  &  C.  611. 

The  solicitor  for  a  plaintiff  in  a  County  Court  wrote  a  letter  to  the  local  news- 
paper, accusing  the  judge  of  the  County  Court  of  "arbitrary  and  tyrannical 
abuse  of  power,"  and  calling  one  statement  he  had  made  "  a  monstrosity  "  and 
"an  untruth."  Held,  that  the  judge  had  no  power  to  proceed  against  the 
solicitor  for  contempt  of  court  ;  although  the  matter  was  still  pending. 

R.  v.  Le  Froy,  Ex  parte  JoUiffe,  L.  R.  8  Q.  B.  134  ;  42  L.  J.  Q.  B. 
121  ;  21  W*.  R.  332  ;  28  L.  T.  132. 

Charles  Carus  Wilson,  an  English  attorney,  went  to  reside  in  Jersey,  and 
there  brought  an  action  against  Peter  Le  Sieiir  in  the  Royal  Court  of  Jersey, 
which  was  composed  of  a  bailiff  and  two  jurats,  or  lieutenant-bailiffs.  On  Sep- 
tember 23rd,  1844,  the  Court  was  about  to  deliver  an  interlocutory  judgment 
in  the  cause  against  Wilson,  when  he  interposed,  and,  in  an  unbecoming  man- 
ner, protested  against  the  competency  of  the  Court,  his  own  counsel  being 
present  and  silent.  Wilson  had  previously  been  repeatedly  warned  that  his 
conduct  was  [*508]  disrespectful.  The  Court  thereupon,  after  giving  Wilson 
full  opportunity  to  explain  or  apologise  for  his  conduct,  sentenced  him  to  pay 
a  fine  of  £10  and  apologise  to  the  Court,  and  in  default  to  be  imprisoned  till 

(455) 


384  •  SEDITIOUS    WORDS. 

obedience.  This  sentence  was  duly  recorded  in  the  judgment  book,  and  read 
aloud  to  Wilson  and  his  counsel  then  and  there  ;  but  Wilson  wholly  refused 
either  to  pay  or  to  apologise,  and  was  accordingly  at  once  arrested  by  the  vis- 
count of  the  island,  whose  duty  it  was  to  carry  into  effect  the  sentences  of  the 
Royal  Court,  and  lodged  in  Her  Majesty's  gaol.  A  writ  of  habeas  corpus  was 
obtained,  on  the  ground  that  there  was  no  written  warrant  for  his  arrest  or 
detainer.  The  return  to  the  writ  set  out  all  the  facts,  and  also  stated  that  by 
the  law  and  practice  of  the  Island  of  Jersey  no  written  warrant  was  necessary 
or  usual,  but  the  sentence  duly  recorded  was  of  itself  a  sufficient  authority, 
justifying  and  compelling  the  viscount  to  arrest,  and  the  gaoler  to  detain,  the 
offender.  Held,  by  Lord  Denman,  C.  J-,  Patteson,  Williams,  and  Wightman, 
JJ.,  that  affidavits  could  not  be  received  on  behalf  of  Wilson  to  show  that  such 
was  not  the  law  or  practice  of  Jersey,  and  that  in  other  respects  the  Royal 
Court  had  acted  inconsistently  with  its  own  law  ;  that  no  written  warrant  -was 
necessary  ;  that  the  contempt  was  a  matter  which  the  Royal  Court  had  to 
decide  for  itself  ;  that  its  decision,  being  the  decision  of  a  competent  Court, 
could  not  be  reviewed  by  the  Queen's  Bench  ;  and  Wilson  was  accordingly,  on 
April  22nd,  1845,  remanded  to  Her  Majesty's  prison  in  Jersey. 
Cams  Wilson's  Case,  7  Q.  B.  984. 

An  Inferior  Court  not  of  record  has  no  power  to  fine  or  commit 
for  contempt.  But  it  has  another  remedy  :  the  offender  may  be 
required  to  find  sureties  for  his  good  behaviour, 

(i)  If  he  use  any  disrespectful  or  unmannerly  expressions  in  the 

face  of  the  court.     (1  Lev.  107  ;  1  Keb.  558.) 
(ii)  If,  out  of  court,  he  uses  words  disparaging  the  judge  or  mag- 
istrate in  relation  to  his  office.    * 
(iii)  If,  out  of  court,  he  obstruct  or  insult  an  officer  of  the  court 

in  the  execution  of  his  duty.     (Hawk.  P.  C.  c.  61,  ss.  2,  3.) 
(iv)  And  generally,  if  he  use  any  words  which  directly  tend  to  a 

breach  of  the  peace. 
But  not  for  contemptuous  and  uncivil  words  spoken  of  the  judge 
in  his  private  capacity. 

Such  binding  over  should  be  done  as  soon  as  possible  after  the 
contempt  is  committed  ;  and  in  the  case  of  petty  sessions,  it  should 
de  done,  not  by  the  justice  specially  attacked,  but  by  one  of  his 
brethren.  [*509]  (-R.  v.  Zee,  12  Mod.  514.)  The  person  accused 
may  call  evidence  to  disprove  the  matters  charged  against  him 
(which  he  could  not  do  in  a  case  of  "articles  to  keep  the  peace") 
but  he  may  not  give  evidence  himself,  this  being  a  criminal  proceed- 
ing. {Reg.  Justices  of  Queen's  County,  10  L.  R.  Ir.  294  ;  15  Cox,  C. 
C.  149.)  And  in  default  of  sureties  being  provided,  the  justices 
may  commit  either  to  the  common  gaol  or  to  the  House  of  Correc- 
tion (6  Geo.  I.  c.  19,  s.  2)  ;  but  it  should  appear  clearly  upon  the 
face  of  their  warrant  that  the  committal  is  for  want  of  sureties,  and 
not  merely  for  contempt.  (Dean's  Case,  Cro.  Eliz.  689.)  And  the 
committal  should  be  for  a  time  certain,  not  "until  he  shall  find  such 
sureties,"  else  a  poor  and  friendless  man  might  be  imprisoned  for 
life.     (Prickett  v.  Gratrex,  8  Q.  B.  1020.) 

Illustrations. 

Langley  said  to  the  Mayor  of  Salisbury  whilst  in  the  execution  of  his  office, 
"  Mr.  Mayor,  I  do  not  cafe  for  you  ;  you  are  a  rogue  and  a  rascal."    Held,  tha/ 

(456) 


SURETIES    EOR    GOOD    BEHAVIOUR.  385 

the  words  were  not  indictable  ;  but  that  the  mayor  might  have  bound  him  over 
then  and  there  to  be  of  good  behaviour,  and  ought  to  have  done  so  instantly. 

R.  v.  Langley,  2  Ld.   Raymond,  1029;  6  Mod.   125;  2  Salk.  697; 
Holt,  654. 
Rogers  spoke  unmannerly  words  to  Sir  Robert  Jeffryes,  an  Alderman  of  the 
City  of   London,  while  he  was  holding  a  wardmote  in  a  church.     Molt,  C.  J., 
said,  "  No  information  of  indictment  will  lie  for  these  words.     For  the  common 
law  has  provided  a  proper  method  for  punishment  of  scandalous  words,  viz., 
binding  to  the  good  behaviour  ;  such  words  being  a  breach  of  the  peace." 
11.  v.  Rogers,  2  Ld.  Raym.  777  ;  7  Mod.  28. 

As  to  some  Inferior  Courts  special  statutes  have  been  passed. 
Thus,  as  to  County  Courts,  by  9  &  10  Vict.  c.  95,  s.  113  (County 
Courts,  1846),  it  is 'enacted,  that  "  If  any  person  shall  wilfully  insult 
the  judge  or  any  juror,  or  any  bailiff,  clerk  or  officer  of  the  said 
court  for  the  time  being,  during  his  sitting  or  attendance  in  court, 
or  in  going  to  or  returning  from  the  court,  or  shall  wilfully  inter- 
rupt the  proceedings  of  the  court  or  otherwise  misbehave  in  court,  it 
shall  be  lawful  for  any  bailiff  or  officer  of  the  court,  with  or  without 
the  assistance  of  any  other  person,  by  the  order  of  the  judge,  to  take 
such  offender  into  custody,  and  detain  him  until  the  rising  of  the 
court  ;  and  the  judge  shall  be  empowered,  if  he  shall  think  tit,  by 
a  warrant  under  his  hand,  and  sealed  with  the  seal  of  the  [*510] 
court,  to  commit  any  such  offender  to  any  prison  to  which  he  has 
power  to  commit  offenders  under  this  Act  (see  12  &  13  Vict.  c.  101, 
s.  2),  for  any  time  not  exceeding  seven  days,  or  to  impose  upon  any 
such  offender  a  fine  not  exceeding  £5  for  every  such  offence  ;  and, 
in  default  of  payment  thereof,  to" commit  the  offender  to  any  such 
prison  as  aforesaid  for  any  time  not  exceeding  seven  days,  unless 
the  said  fine  be  sooner  paid."  (See  Levy  v.  Moylan,  19  L.  J.  C.  P. 
308;   1  L.  M.  &P.  307.) 

A  County  Court  judge  has  no  power  to  commit  in  any  case  not 
within  this  section,  (li.  v.  Lefroy,  Ex  parte  Jolliffe,  L.  R.  8  Q.  B. 
134  ;  42  L.  J.  Q.  B.  121  ;  21  W.  R.  332  ;  28  L.  T.  132.)  Except, 
of  course,  for  breach  of  injunction,  and  in  other  cases  coming 
within  Rules  40  and  41  of  County  Court  Rules,  1886,  Orel.  XXV. 
{Martin  v.  Bannister,  4  Q.  B.  D.  212,  491  ;  48  L.  J.  Ex.  300  ;  27 
W.  R  431.) 

By  the  County  Voters  Registration  Act,  1865  (28  Vict.  c.  36),  s. 
16,  it  is  declared  to  "be  lawful  for  any  revising  barrister,  whether 
revising  the  lists  of  a  county,  city,  or  borough,  to  order  any  person 
to  be  removed  from  his  court  who  shall  interrupt  the  business  of  the 
court,  or  refuse  to  obey  his  lawful  orders  in  respect  of  the  same  ; 
and  it  shall  be  the  duty  of  the  chief  constable,  commissioner^  or 
chief  officer  of  police  of  the  county,  city,  borough,-  or  place  in  which 
the  court  is  held,  to  take  care  that  an  officer  of  police  do  attend 
that  court  during  its  sitting  for  the  purpose  of  keeping  order  therein 
and  to  carry  into  effect  any  order  of  the  revising  barrister  as  afore- 
said." 

By  the  Petty  Sessions  (Ireland)  Act,  1851  (14  &  15  Vict.  c.  93),  a. 

9,  it  is  enacted  that  if  any  person  shall  wilfully  insult  any  justice  or 

justices  ....  sitting  in  any  ....  coui-t  or  place,  or  shall  commit 

any  contempt  of  any  such  court,  it  shall  be  lawful  for  such  justice 

25  lib.  &  slan.  (457) 


386  SEDITIOUS    WORDS. 

or  justices  by  any  verbal  order,  either  to  direct  such  person  to  be 
removed  from  such  court  <>r  place,  or  to  be  taken  into  custody,  and 
at  any  time  before  the  rising  of  such  court,  by  [*51l]  warrant,  to 
commit  such  person  to  gaol  for  any  period  not  exceeding  seven 
days,  or  to  fine  such  person  in  any  sum  not  exceeding  40s. 


Illustrations. 

In  1874  Thomas  Willis  claimed  to  vote  as  a  freeholder  ;  hut  the  revising 
barrister  on  the  meagre  evidence  before  him  held  that  the  property  in  respect  of 
which  he  claimed  was  copyhold,  and  disallowed  the  vote.  Hiscousin,  William 
Willis,  who  was  present  in  court  as  agent  for  the  opposite  political  party,  knew 
perfectly  well  that  it  was  really  freehold,  but  held  his  tongue.  In  1875  Thomas 
Willis  accordingly  claimed  as  a  copyholder.  Then  William  came  forward  and 
produced  the  family  title-deeds  and  proved  clearly  that  the  land  was  freehold. 
The  revising  barrister  was  compelled  again  to  disallow  Thomas's  vote:  but 
ordered  William  to  be  turned  out  of  the  room  for  not  having  produced  this 
evidence  in  1874.  Held,  that  such  expulsion  was  wrongful,  as  William's  con- 
duct in  1874,  though  possibly  deserving  of  moral  reprobation,  was  certainly  no 
"interruption''  of  the  proceedings  of  the  court  then  being  held  in  1875. 

Willis  v.  Maalachlan,!  Ex.  D.  376  •,  45  L.  J.  Ex.  689  ;  35  L.  T.  218. 

To  persist,  in  spite  of  repeated  remonstrance,  in  interrupting  and  insulting  a 
court  of  petty  sessions,  by  shouting  at  the  bench  in  the  most  violent  and  un- 
seemly manner,  so  that  none  of •  the  justices  could  speak  a  word,  is  a  contempt 
for  which  the  court  may  commit  to  prison  even  a  solicitor  practising  before 

In  re  John  Rea  (1878),  2  L.  R.  Ir.  429  ;  14  Cox,  C.  C.  139. 

A  material  witness  against  a  prisoner  committed  for  trial  on  a  charge  of 
felony  refused  to  be  bound  over  to  appear  at  the  quarter  sessions  to  give  evi- 
dence against  him,  saying  that  she  would  not  go  to  Maidstone,  and  nobody 
should  make  her.  After  fully  explaining  the  matter  and  expending  nearly  an 
hour  in  the  attempt  to  persuade  her  to  go,  the  committing  magistrate  issued  a 
warrant  by  virtue  of  which  she  was  taken  to  Maidstone,  and  gave  her  evidence, 
and  the  prisoner  was  convicted  ;  without  her  evidence  he  could  not  have  been 
convicted.  Held,  that  the  arrest  was  lawful,  by  necessary  implication  from 
1  &  2  Ph.  &  M.  c.  13. 

Bennett  and  wife  v.  Watson  and  another,  3  M.  &  S.  1. 

The  term  "  Inferior  Court "  includes  the  Mayor's  Court,  London  ; 
the  Sheriff's  Court,  the  City  of  London  Court  of  Record,  the 
Secondary's  Court,  the  Tolzey  Court  of  Bristol,  the  Salford 
Hundred  Court,  the  Court  of  Passage,  Liverpool  ;  all  Sheriff's 
Courts,  all  County  Courts,  all  Courts  of  Quarter  and  Petty  Sessions, 
all  Coroners,  all"  Revising  Barristers,  and  in  short,  all  temporal 
Courts  not  enumerated  as  superior  Courts,  ante,  p.  502. 

[*512]  The  Ecclesiastical  Courts  have  no  power  to  commit  for 
contempt  at  all.  All  that  such  court  can  do  is  to  signify  such  con- 
tempt to  the  Lord  Chancellor,  who  thereupon,  under  2  &  3  Will.  IV. 
c.  93,  issues  a  writ  cle  contvmace  capiendo  for  taking  the  offender 
into  custody.  {Adlam  v.  CoUhurst,  L.  R.  2  Adm.  &  Ecc.  30  ;  36 
L.  J.  Ec.  Ca.  14  ;  Ex  parte  Dale,  43  L.  T.  534.)  But  such  writ  will 
not  issue  if  the  alleged  offender  be  a  peer,  a  lord  of  Parliament,  or  a 

1458) 


STATUTORY   POWERS.  387 

member  of  the  House  of  Commons  (sect.  2).  Note  that  both  Mr. 
Long  WeUesley  and  Mr.  Lechmere  Charlton  were  members  of 
Parliament,  and  yet  both  were  committed  to  the  Fleet  for  contempt 
of  the  Court  of  Chancery.  (2  Russ.  &  Mylne,  639  ;  2  Mylne  &  Or. 
316.)  And  see  the  remarks  of  Cockburn,  C.  J.,  in  Onslow'' s  and 
Whalky's  Oases,  L.  R.  9  Q.  B.  228,  229  ;  12  Cox,  C.  C.  369. 


END    OP   VOL    I. 


(459) 


THE    LAW 


OF 


LIBEL  AND  SLANDER 

THE  EVIDENCE,  PROCEDURE,  AND  PRACTICE, 

BOTH   IN 

CIVIL    AND    CRIMINAL    CASUS, 

AND 

PRECEDENTS  OF  PLEADINGS, 

WITH 

A  CHAPTER  ON  THE   NEWSPAPER   LIBEL  AND  REGISTRATION  ACT,  1881. 

BY 

W.  BLAKE  ODGERS,  M.A.,  LL.D. 

LATE    SCHOLAR    AND    LAW    6TUDENT    OP    TRINITY    HALL,    CAMBRIDGE, 
OP     THE     MIDDLE     TEMPLE     AND     THE     WESTERN      CIRCUIT,     BARRI8TER-AT-LAW. 

FROM  THE  SECOND  ENGLISH  EDITION. 

"DEAD  SCANDALS  FOJiU  GOOD  SUBJECTS  FOR  DISSECTION."— Brnos. 

VOL  II. 


PHILADELPHIA : 

THE  BLACKSTONE  PUBLISHING  COMPANY, 

1888. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1888 

By  THE  BLACKSTONE  PUBLISHING  COMPANY, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


(2) 


PART  II.  [*5,3] 

ODGERS'  LIBEL  AID  SLANDER. 


PKAOTICE,  PROCEDURE,  AND  EVIDENCE. 


CHAPTER  XIX. 

PRACTICE    AND    EVIDENCE    IN    CIVIL    CASES. 

An  action  of  libel  or  slander  should  not  be  lightly  undertaken  ;  it 
is  a  dangerous  experiment  ;  many  a  plaintiff,  even  though  nominally 
successful,  has  bitterly  regretted  that  he  ever  issued  his  writ. 
Everyone  who  proposes  to  bring  an  action  of  defamation  should 
remember  that  he  is  about  to  stake  his  reputation  on  the  event  of  a 
lawsuit,  and  to  invite  the  public  to  be  spectators  of  the  issue.  No 
step,  therefore,  should  be  taken  in  hot  haste. .  There  are  many 
matters  which  require  careful  consideration  before  an  action  be 
commenced. 

Considerations   before  Writ. 

First,  is  it  clear  that  the  plaintiff  is  the  person  defamed  ?  Libels 
are  often  couched  in  guarded  language,  so  that  none  but  the 
initiated  can  tell  to  whom  they  refer.  Thus,  if  the  libel  be  on  "  a 
certain  vicar,"  no  individual  vicar  should  sue,  unless  by  other 
passages  in  the  libel  he  is  unmistakeably  identified  ;  otherwise  he 
will  be  "  putting  the  cap  on  his  own  head."  It  is  not  enough  that 
one  or  two  of  the  plaintiff's  dearest  friends  feel  convinced  that  he 
is  the  person  aimed  at  ;  he  should  not  sue  unless  his  acquaintances 
generally  have  reasonably  arrived  at  the  same  conclusion. 

Next,  is  the  charge,  or  any  part  of  it,  true?  If  so,  the  plaintiff, 
by  bringing  an  action  takes  the  surest  method  of  advertising  his 
own  disgrace.  When  once  the  action  is  brought  and  a  justification 
[*  514]  pleaded,  no  honourable  compromise  can  be  effected  ;  the 
matter  must  be  fought  out  to  the  bitter  end  ;  and  every  detail  will 
become  matter  of  "  town  talk."  It  would  be  better,  therefore,  for 
such  a  plaintiff  to  affect  an  indifference  which  he  does  not  feel,  and 
treat  the  libel  as  "beneath  contempt.'1 

And  even  if  the  charge  itself  be  false,  still  if  the  plaintiff  has 
been  at  all  to  blame  in  the  matter,  if  his  conduct,  though  not 
morally  reprehensible,  has  yet  been  indiscreet  or  unbecoming,  or 

(463) 


392  PRACTICE    AND    EVIDENCE. 

such  as  would  naturally  lead  people  to  make  unkind  remarks,  it  will 
be  better  for  him  not  to  sue.  lie  will  have  to  be  cross-examined  in 
open  court,  and  every  admission  wrung  from  him  will  be  published 
in  all  the  county  papers  ;  the  blackest  motives  will  be  imputed  to 
him,  and  the  worst  possible  construction  be  put  upon  his  conduct. 
And  although  the  verdict  be  ultimately  in  the  plaintiff's  favour, 
many  of  his  acquaintances  \tfill  remember  with  pleasure  to  their 
dying  day  what  a  sorry  figure  he  cut  in  the  box. 

The  plaintiff  should  also  consider  whether  he  has  not  by  his  own 
conduct  brought  the  libel  or  slander  on  himself.  (See  Davis  v. 
Duncan,  L.  R.  9  C.  P.  390  ;  43  L.  J.  C.  P.  185  ;  22  W.  R.  575  ; 
30  L.  T.  464  ;  ante,  p.  52.)  Sometimes  it  is  a  defence  to  an  action 
that  the  plaintiff  challenged  or  invited  the  defendant's  attack  {ante, 
p.  232)  ;  and  in  every  case  the  defendant  may  show  in  mitigation 
of  damages  the  provocation  given  by  the  plaintiff  {ante,  p.  318). 
A  man  who  has  commenced  a  newspaper  controversy  conies  with  a 
very  bad  grace  to  the  law  courts  for  assistance  against  too  powerful 
an  adversary.  If  both  parties  are  to  blame,  the  result  of  the  trial  is 
generally  : — Damages,  one  farthing  ;  each  party  to  pay  his  own 
costs. 

And  wholly  apart  from  the  above  considerations,  is  it  worth 
while  to  bring  an  action?  Is  the  matter  sufficiently  serious  ?  A 
man  does  not  advance  either  his  dignity  or  his  reputation  by  showing 
himself  too  sensitive  to  calumny.  People  will  think  that  he  is 
eager  for  litigation,  because  he  knows  that  his  character  cannot 
stand  the  least  wear  and  tear.  This  remark  applies  especially  to 
actions  of  slander.  It  is  not  wise  to  inquire  too  curiously  what 
others  say  of  us  behind  our  backs.  The  slander  is  only  heard  by- 
few  ;  it  will  soon  be  forgotten  ;  whereas  if  you  bring  an  action,  it 
will  be  disseminated  throughout  the  country,  and  recorded  in  a 
permanent  shape.  Still  it  may  be  a  man's  duty  to  take  proceedings, 
if  the  charge  made  against  him  be  really  serious. 

Even,  however,  in  cases  of  libel,  it  is  better  to  exhaust  every 
other  method  first.  If  the  libel  has  appeared  in  a  newspaper,  write 
to  the  editor  a  calm  and  dignified  letter  in  answer,  avoiding  all 
"smart  writing,"  [*  515]  and  indulging  in  no  tu  quoque.  This 
will  probably  bring  an  apology  from  the  writer  of  the  original 
letter.  And  a  prompt  apology  and  retractation  of  the  charge"  is 
always  worth  more  to  a  plaintiff  than  any  amount  of  damages.  If, 
however,  no  apology  comes,  but  another  letter  worse  than  the  first, 
the  plaintiff's  position  is  improved  thereby  ;  for  defendant's  per- 
sistence in  the  charge  after  the  explanation  afforded  is  evidence  of 
malice,  entitling  the  plaintiff  to  heavy  damages. 

Next,  before  issuing  a  writ,  the  plaintiff  should  make  sure  what 
were  the  defendant's  exact  words.  Of  a  libel,  a  copy  can  as  a  rule 
be  easily  obtained  ;  but  with  slanders  it  is  different.  What  has 
reached  the  plaintiff's  ears  may  be  a  highly  exaggerated  version  of 
what  the  defendant  actually  said.  The  plaintiff  is  usually  the  last 
person  who  hears  the  charge  against  him  ;  and  it  has  probably  grown 
on  each  repetition  ;  words  not  actionable  per  se  are  frequently  con- 
verted into  actionable  words    in    the    intermediate  process.     The 

(464) 


CONSIDERATIONS    BEFORE    WRIT.  393 

person  slandered  should,  therefore,  take  a  friend  with  him  (who  will 
make  a  good  witness)  and  go  and  ask  the  alleged  slanderer  : — 
" Is  it  true  that  you  have  been  saying  this  of  me?"  if  he  denies 
that  he  ever  said  so,  as  is  very  possible,  appear  at  all  events  to 
believe  him,  and  bring  no  action  ;  if  he  confesses  that  he  did  say 
so,  but  has  since  discovered  he  was  mistaken,  get  him  to  write  you 
a  letter  acknowledging  his  error,  to  show  anyone  if  necessary,  and 
then  forgive  him.  If,  however,  he  admits  that  he  said  so  and 
reiterates  the  charge,  then  you  are  provided  by  anticipation  with 
the  best  possible  evidence  of  publication — an  admission  by  the 
defendant.  Lord  •Denman  says,  in  Griffiths  v.  Lewis,  7  Q.  B.  01  ; 
14  L.  J.  Q.  B.  199  ;  9  Jur.  '370,  "It  is  never  wise  to  bring  an 
action  for  slander  unless  some  such  course  has  been  taken."  See 
his  remarks,  ante,  p.  235. 

As  soon  as  it  is  clear  what  is  the  precise  charge  made  by  the 
defendant,  the  next  question  will  be  : — Are  the  words  actionable  ? 
On  this  point  the  plaintiff  should  consult  his  solicitor,  who  should 
consult  c.  II.  ante,  pp.  17 — 92.  If  the  words  are  not  actionable 
without  special  damage,  the  plaintiff  must  wait  for  some  damage  to 
accrue  before  commencing  his  action. 

Parties. 

Next,  it  must  be  determined  who  is  the  right  plaintiff,  and  who 
the  proper  defendant  ;  as  to  which  see  c.  XIV.,  ante,  pp.  394 — 421. 
Formerly  the  law  and  practice  as  to  "  parties  "  was  of  the  utmost 
importance,  misjoinder  of  a  plaintiff  being  ground  of  nonsuit,  while 
non-joinder  of  a  necessary  plaintiff  was  the  subject  of  a  plea  in 
abatement,  But  now,  by  Order  XXI.  r.  20,  "  No  plea  or  defence  shall 
be  [*510]  pleaded  in  abatement,  "and  in  Order  XVI.  r.  11,  the  general 
principle  is  laid  down,  that  "  No  cause  or  matter  shall  be  defeated 
t)y  reason  of  the  misjoinder  or  non-joinder  of  parties,  and  the  court 
may  in  every  cause  or  matter  deal  with  the  matter  in  controversy, 
so  far  as  regards  the  rights  and  interests  of  the  parties  actually 
before  it.  The  court  or  a  judge  may,  at  any  stage  of  the  proceed- 
ings, either  upon  or  without  the  application  of  either  party,  and  on 
such  terms  as  may  appear  to  the  court  or  a  judge  to  be  just,  order 
that  the  names  of  any  parties  improperly  joined,  whether  as  plain- 
tiffs or  as  defendants,  be  struck  out,  and  that  the  names  of  any 
parties,  whether  plaintiffs  or  defendants,  who  ought  to  have  been 
joined,  or  whose  presence  before  the  court  may  be  necessary  in  order 
to  enable  the  court  effectually  and  completely  to  adjudicate  upon 
and  settle  all  the  questions  involved  in  the  action,  be  added.'*  And 
see  rr.  1,  2  of  the  same  Order.  But  such  amendment  will  not  as  a 
rule  be  allowed  where  the  party  applying  for  it  is  clearly  to  blame, 
or  where  a  hardship  would  be  inflicted  on  his  opponent.  And  even 
when  an  order  is  made,  it  will  generally  be  only  upon  payment  of 
all  costs  thereby  occasioned.  Hence  this  branch  of  the  law  still 
deserves  careful  consideration. 

The  non-joinder  of  a  defendant  in  an  action  of  tort  never  was  any 
ground  of  objection  ;  the  present  defendant  cannot  plead  in  abate- 

(465) 


394  PRACTICE    AND    EVIDENCE. 

ment  or  in  bar  that  another  joint  wrongdoer  lias  not  been  made  a 
co-defendant  (Mitchell  v.  Tarbutt  and  others,  5  T.  R.  649  ;  Ansell  v. 
Wdterhouse,  6  M.  &  S.  385)  ;  for  all  persons  engaged  in  a  common 
wrongful  ;ict  are  liable  jointly  and  severally  for  the  consequent 
damage.  (Co.  Lit.  232  a;  1  Wms.  Saund.  291  f  ;  Sutton  v. 
Clarke,  6  Taunt.  29.)  So,  too,  the  misjoinder  of  one  defendant 
would  not  avail  the  others  ;  it  would  only  entitle  the  defendant 
misjoined  to  a  verdict  in  his  favour.  (Morrow  v.  Belcher  and 
others,  4  B.  &  C.  704  ;  Govelt  v.  Radnidge  and  others,  3  East,  62  ; 
JBretherton  and  others  v.  Wood,  3  B.  &  B.  54.)  And  this  is  con- 
tinued by  Ord.  XVI.  rr.  4,  5  and  7.  But  the  plaintiff  will  have  to 
pay  the  costs  of  the  defendant  who  proves  not  liable,  unless  such 
defendant  has  colluded  with  the  other  defendant  found  to  be  liable, 
or  has  otherwise  been  guilty  of  misconduct  ;  so  that  it  is  undesira- 
ble to  join  any  defendant  who  is  not  liable  for  the  publication  sued  on. 

In  cases  of  slander  where  special  damage  is  essential  to  the  action, 
be  careful  to  sue  only  that  person  whose  utterance  of  the  slander 
actually  caused  the  special  damage.  Do  not  sue  the  originator  of 
the  falsehood,  if  his  utterance  of  it  has  produced  no  direct  injury 
to  the  plaintiff.  In  cases  where  a  libel  has  been  written  by  one 
man  at  the  direction  of  another,  it  is  often  wise  to  sue  the  person 
who  actually  [*517]  wrote  the  libel  as  well  as  his  master  or 
employer.  For,  so,  although  the  plaintiff  may  fail  to  prove  agency 
at  the  trial,  he  will  yet  be  entitled  to  judgment  against  the  clerk  or 
servant. 

Where  a  libel  has  appeared  in  a  newspaper,  the  person  defamed 
can  sue  the  proprietor,  the  editor,  the  printer,  and  the  publisher,  or 
any  one  or  more  of  them.  But  there  is  no  object,  as  a  rule,  in  hav- 
ing more  than  one  defendant,  or  bringing  more  than  one  action  for 
the  same  libel  ;  (see,  however,  Tucker  v.  Tmicson,  2  Times  L.  R. 
593  ;  and  Golledge  v.  Pike,  56  L.  T.  124.)  It  is  usual  to  sue  only 
the  proprietor,  as  his  name  and  address  can  be  ascertained  at  once 
at  the  Somerset  House,  Room  No.  7,  and  the  fact  that  he  is  the  pro- 
prietor can  be  easily  proved  by  the  production  of  a  certificate  under 
sect.  15  of  the  Act  of  1881.  If  the  action  be  originally  brought 
against  the  publisher  only  a  master  at  chambers  will  subsequently, 
on  proper  terms,  join  the  proprietor  as  a  co-defendant.  (Edward 
v.  Lowther,  45  L.  J.  C.  R  417  ;  -_'4  W.  R.  434  ;  34  L.  T.  255.)  The 
plaintiff,  however,  generally  and  naturally  prefers  to  sue  the  author. 
Hence  his  solicitor  frequently  writes  to  the  editor  of  the  paper 
before  issuing  the  writ  demanding  the  writer's  name  and  address. 
This  information  the  editor  will,  as  a  rule,  refuse  to  give.  Editors 
generally  regard  it  as  a  point  of  honour  not  to  disclose  the  name  of 
any  contributor.  In  Marie  v.  Gather  all  and  others,  14  L.  T.  802, 
Martin,  B.,  says,  "When  a  man  went  to  an  editor  to  ask  for  the 
name  of  an  anonymous  correspondent,  no  blame  attached  to  the 
editor  for  refusing  to  give  the  name.  Indeed,  an  editor  would 
almost  be  mad  to  do  so.  He  should  blame  no  editor  for  so  refus- 
ing." The  plaintiff  must  in  such  a  case  be  content  to  sue  the  pro- 
prietor of  the  paper,  who  generally  obtains  an  indemnity  from  the 
writer.     And  the  plaintiff  can  not,   in  such  action,  compel  the  pro- 

(46C; 


PARTIES.  395 

prietor  to  produce  the  original  manuscript  so  that  lie  may  recognize 
the  handwriting  ;  at  all  events,  not  before  delivery  of  the  statement 
of  claim.  (British  and  foreign  Contract  Co.  v.  Wright,  '-'r2  W. 
R.  413.)  The  printer  of  a  libel,  on  the  oilier  hand,  will  generally 
disclose  the  name  of  his  employer  ;  there  is  no  reason  why  he  should 
not  ;  and  see  the  statute  39  Geo.  III.  c.  79,  s.  29,  2>ost,  p.  711. 

Letter  before  Action. 

In  all  cases,  before  actually  issuing  a  writ,  the  plaintiff's  solicitor 
should  write  to  the  defendant,  demanding  an  apology  and  threaten- 
ing proceedings.  Say  nothing  in  this  letter  about  costs.  If  the 
charge  was  made  publicly,  a  public  apology  should  be  demanded,  to 
be  advertised  in  a  newspaper.  If  only  a  few  heard  it,  the  plaintiff 
should  be  [*  518]  content  with  a  letter  of  apology,  fully  retracting 
the  charge,  which  can  be  shown  to  every  one  who  heard  what  the 
defendant  said. 

Notice    of   Action. 

Sometimes  besides  the  letter  before  action  it  is  necessary  to  give 
a  formal  notice  of  action  a  month  and  a  day  before  the  writ  is 
issued,  e.  g.,  where  a  libel  is  written  by  any  one  acting  bond  fide  in 
the  execution  of  any  statutory  duty.  {Murray  v.  McSwiney,  Ir.  R. 
9  C.  L.  545  ;  5  &  6  Vict.  c.  97,  s.  4.)  In  such  cases,  a  letter  asking 
for  the  name  of  the  writer's  informant,  and  threatening  proceed- 
ings if  the  name  be  not  disclosed,  will  not  be  a  sufficient  notice  within 
the  statute.  (Norris  v.  Smith,  10  A.  &  E.  188.)  See  form  of  such 
notice,  Precedent  No.  19,  post,  p.  631. 

Jurisdiction. 

An  action  of  libel  or  slander  can  primd  facie  be  tried  by  any 
court  within  whose  jurisdiction  the  defamatory  words  were  uttered, 
written,  printed,  or  published  in  any  way.  And  a  letter  is  deemed 
to  be  published  both  where  it  is  posted  and  where  it  is  received  and 
opened.  (B.  v.  Burdett,  4  B.  &  Aid.  95.)  But  when  the  words 
are  not  actionable  per  se,  there  must  be  special  damage  ensuing  to 
constitute  a  cause  of  action.  In  the  case  of  an  Inferior  Court  the 
whole  cause  of  action  must  as  a  rule  arise  within  its  jurisdiction. 
I  Gold  v.  Turner,  L.  R.  10  C.  R  149  ;  23  W.  R.  732  ;  Allerton  v. 
Archer,  14  Q.  B.  D.  1  ;  54  L.  J.  Q.  B.  12  ;  33  W.  R.  136  ;  51  L.  T. 
661.)  Hence  an  Inferior  Court  will  not  have  jurisdiction  unless 
both  the  publication  and  the  special  damage  occurred  within  its 
district,  (Zittleboy  v.  Wright,  1  Lev.  69  ;  1  Sid.  95.)  But  in  a 
Superior  Court  it  is  primd  facie  sufficient  if  either  the  publication  or 
the  consequent  special  damage  occurred  within  its  jurisdiction  (Bree 
v.  Marescaux,  (C.  A.)  7  Q.  B.  D.  434  ;  50  L.  J.  Q.  B.  676  ;  29  W. 
R.  858  ;  44  L.  T.  644,  765)  ;  and  this  whether  either  party  be  a 
British  subject  or  an  alien.  Again,  the  Supreme  Court  of  Judi- 
cature in  England  has  a  general  jurisdiction  over  all  torts  com- 

(467) 


396  PRACTICE    AND    EVIDENCE. 

raitted  by  one  Englishman  to  another  in  any  corner  of  the  world, 
whether  in  an  English  Colony  (Wyatt  v.  Gore,  Holt,  N.  P.  299  ; 
ante,  p.  315)  or  in  a  foreign  country  (Scott  v.  Lord  Seymour,  1  H. 
&  C.  219  ;  31  L.  J.  Exch.  457  ;  32  L.  J.  Exch.  01  ;  8  Jur.  K  8. 
563  ;   10  W.  R.  739  ;  0  L.  T.  607). 

But  the  Court  of  its  own  accord  restricted  these  wide  powers  to 
cases  in  which  the  defendant  is  within  jurisdiction  at  the  time  the 
writ  is  issued,  so  that  it  can  be  served  upon  him  here.  If  the  defend- 
ant is  out  of  jurisdiction,  no  writ  can  be  issued  except  by  leave 
[*5 19]  (Order  II.  r.  4),  and  such  leave  will  only  be  granted  in  the  cases 
specified  in  Order  XL  (Lire  Eager,  Eager  v.  Johnstone,  (C.  A.)  22 
(li.  I).  86  ;  52  L.  J.  Ch.  56  ;  31  W.  R.  33  ;  47  L.  T.  685),  which 
greatly  limits  the  powers  formerly  possessed  by  the  Court.  The 
effect  of  this  Order  is  practically  to  prevent  any  action  being 
brought  here  for  damages  for  any  libel  or  slander  published 
abroad,  and  also  for  any  libel  or  slander  published  here  by  a  person 
ordinarily  resident  abroad,  unless  he  happens  to  come  to  England,  so 
that  personal  service  can  be  effected.  The  fact  that  a  newspaper 
published  abroad  has  a  branch  office  in  this  country  will  not  enable  a 
plaintiff  to  serve  a  writ  at  the  branch  office  without  leave  under  this 
rule.  (Jones  v.  Scottish  Accident  Insurance  Co.  Limited,  17  Q.  B. 
D.  421  ;  55  L.  J.  Q.  B.  415  ;  55  L.  T.  218  ;  Baillie  v.   Goodwin  & 

Co.,  33  Ch.  D.  604  ;  55  L.  J.  Ch.  849  ;  34  W.  R.  787  ;  55  L.  T.  56.) 
There  can  be  no  substituted  service  of  a  writ  in  an  action  where  there 
cannot  in  law  be  personal  service  of  the  writ.  (Field  v.  Bennett,  56 
L.  J.  Q.  B.  89.)  And  if  the  words  bespoken  out  of  jurisdiction,  the 
fact  that  they  incidentally  affect  property  within  jurisdiction  is  not 
sufficient  to  bring  the  case  within  Order  XI.  (  Casey  v.  Arnott,  2 
C.  P.  D.  24  ;  461,.  J.  C.  P.  3  ;   25  W.  R.  46  ;  35  L.  T.  424.) 

But  the  plaintiff  will  be  entitled  to  leave  under  Order  XI.  r.  1  (/) 
if  he  adds  a  claim  for  an  injunction  on  his  writ.  (  Tozier  and  Wife  v. 
Hawkins,  15  Q.  B.  D  650,  680  ;  55  L.J.  Q.  B.  152  ;  34  W.  R.  223.) 
And  it  has  been  held  that  it  is  not  necessary  that  he  should  ask  for 
an  injunction  only  ;  he  may  claim  other  relief  as  well.  (Lisbon- Berlyn 

Gobi  Fields  Limited  v.  Ileddle,  52  L.  T.  796.)  But  the  judge  at 
chambers,  when  granting  leave  to  serve  the  writ  out  of  jurisdiction, 
may,  if  he  think  fit,  limit  the  plaintiff  to  that  portion  of  his  claim 
in  respect  of  which  it  shall  appear  at  the  trial  that  the  writ  could 
have  been  properly  served  out  of  jurisdiction.  (Thomas  v.  Duchess 
Dowager  of  Hamilton,  (C.  A.)  17  Q.  B.  D.  592  ;  55  L.  J.  Q.  B.  555; 
35  W.  R.  22  ;  55  L.  T.  219,  385.)  The  court  will,  in  a  proper  case, 
give  leave  for  the  issue  of  a  concurrent  writ  for  service  out  of  juris- 
diction, although  the  original  writ  was  issued  for  service  within 
jurisdiction.  (Smalpaqe  v.  Tonqe,  (C.  A.)  17  Q.  B.  D.  644  ;  55  L. 
J.  Q.  B/518  ;  34  W.  R.  768  ;  55  L.  T.  44.) 

Choice  of  Court. 

Next,  in  what  court  shall  the  action  be  brought  ?  The  County 
Court  has  no  jurisdiction  (9  &  10  Vict.  c.  95,  s.  58),  unless  by  consent 
of  both  parties  (19  &  20  Vict.  c.  108,  s.  23)  ;  although  the  action  may 

^468) 


STATUTE    OF    LIMITATIONS.  397 

[*520]  subsequently  be  remitted  to  the  County  Court  (see  post,  pp. 
526 — 8).  Where  the  particulars  before  a  County  Court  judge  dis- 
close a  cause  of  action  for  libel  or  slander,  he  has  no  power  to  amend 
them  so  as  to  give  himself  jurisdiction,  e.g.,  by  turning  the  case  into 
an  action  for  false  imprisonment.  (Hopper  v.  Warburton,  7  L.  T. 
722.)  The  Courts  of  Equity  before  the  Judicature  Act  had  no  cog- 
nizance over  libels  or  slander,  whether  public  or  private,  except  as 
contempt  of  their  own  courts.  (Roach  v.  Garvan,  lie  Read  ami 
another,  2  Atk.  4(59  ;  2  Dick.  794.)  The  Chancery  Division  now 
undoubtedly  has  jurisdiction  to  try  a  case  of  libel.  (Thomas  v. 
Williams,  14  Ch.  D.  864  ;  49  L.  J.  Ch.  605  ;  28  W.  R.  983  ;  43  L. 
T.  91.)  But  it  is  obviously  inexpedient  to  commence  such  an  ac- 
tion there  ;  for  libel  or  no  libel  is  peculiarly  a  question  for  a  jury. 
In  Thomas  v.  Williams,  the  defendant  never  expressed  a  wish  for 
a  jury  till  the  whole  of  the  evidence  on  both  sides  had  been  put  in  ; 
had  he  applied  sooner,  Fry,  J.,  would  have  changed  the  mode  of 
trial.  (See  14  Ch.  D.  871.)  If  an  injunction  be  desired,  it  can  be 
obtained  as  readily  in  one  Division  as  in  the  other.  For  every  rea- 
son, therefore,  it  is  best  to  issue  the  writ  in  the  Queen's  Bench  Divi- 
sion of  the  High  Court  of  Justice. 

If,  however,  the  defendant  be  an  undergraduate  resident  within 
the  University  of  Oxford  or  Cambridge,  he  must  be  sued  in  the 
University  Court,  although  the  plaintiff  be  in  no  way  connected 
with  the  University  or  resident  within  its  limits,  and  although  the 
libels  complained  of  appeared  in  several  London  newspapers.  (  Gin- 
nett  v.  Whittingham,  16  Q.  B.  D.  761  ;  55  L.  J.  Q.  B.  409  ;  34  W. 
R.  565.) 

Statute   of  Limitations. 

It  is  seldom  that  a  plaintiff  in  an  action  of  defamation  allows  his 
remedy  to  be  barred  by  lapse  of  time.  He  is  generally  too  eager  to 
commence  proceedings,  and  will  not  wait  till  the  special  damage  has 
fully  accrued.  (See  Ingram  v.  Latoson,  6  Bing.  N.  C.  212  ;  8  Scott, 
471  ;  9  C.  &  P.  326  ;  4  Jur.  151  ;  Goslin  v.  Garry,  7  M.  &  Gr.  342; 
8  Scott,  N.  R.  21.)  Still,  the  Duke  of  Brunswick  waited  nearly 
eighteen  years  ;  it  may  be  as  well  therefore  to  state  that  an  action  of 
slander  for  words  actionable  per  se  must  be  brought  "within  two 
years  next  after  the  words  spoken,  and  not  after"  (21  Jac.  I.  c.  16, 
s.  3),  and  that  an  action  for  libel  or  of  scandalum  ma gnatum  must  be 
brought  within  six  years  from  the  date  of  publication.  ( Lord  Say  tb 
Seal,  v.  Stephens,  cited  Cro.  Car.  535  ;  Litt.  342.)  Whenever  the 
words  are  actionable  only  by  reason  of  special  damage,  the  time  does 
aot  begin  to  run  till  the  damage  has  actually  been  sustained.  (Sajoi- 
[*  521]  ders  v.  Edwards,  1  Sid.  95  ;  1  Keble,  389  ;  Sir  T.  Raym. 
61  ;  Littleboy  v.  Wright,  1  Lev.  69  ;  1  Sid.  95  ;  Barley  Main  Col- 
liery Co.  v.  Mitchell',  (H.  L.)  11  App.  Cas.  127  ;  55  L.J.  Q.  B.  529  ; 
54  L.  T.  882.)  And  then  I  presume  the  plaintiff  has  six  years 
within  which  to  sue  and  not  merely  two,  as  the  21  Jac.  I.  c.  16,  does 
not  apply  ;  but  see  Littleboy  v.  Wright,  supra.  Lord  Campbell  was 
evidently  under  a  misapprehension  as  to  the  effect  of  stat.  21  Jac. 

(•16'J» 


398  PRACTICE    AND    EVIDENCE. 

I.  c.  16,-  in  his  remarks  in  9  IT.  L.  C.  p.  518.  In  all  other  cases  the 
time  runs  from  the  date  of  publication,  unless  indeed  the  party  then 
entitled  to  bring  the  action  be  under  any  disability,  or  be  beyond 
the  seas  (21  Jac.  I.  c.  19,  s.  7  ;  4  <fe  5  Anne,  c.  3  (al.  c.  16),  s.  19  ;  3 
&  4  Will.  IV.  c.  42,  s.  7  ;  19  &  20  Vict,  c.  97,  s.  12).  But  if  once 
such  disability  be  removed  and  the  time  begin  to  run,  nothing  after- 
wards can  stop  it. 

But  the  publication  relied  on  to  oust  the  statute  need  not  be  the 
original  or  substantial  publication.  Thus,  if  any  agent  of  the  plain- 
tiff can  induce  the  defendant  to  sell  him  an  old  copy  of  the  libel, 
published  many  years  ago,  such  second  publication,  although  con- 
trived by  the  plaintiff  for  the  very  purpose,  will  be  sufficient  to 
disprove"  the  plea  of  the  Statute  of  Limitations.  And  that  plea 
being  once  ousted  the  jury  will  not  be  confined,  it  is  said,  to  that 
single  publication  within  the  six  years,  but  may  take  all  the  circum- 
stances into  their  consideration.  (Ditke  of  Brunswick  v.  Ilarmer, 
14  Q.  B.  185  ;   19  L.  J.  Q.  B.  20  ;   14  Jur.'llO  ;   3  C.  &  K.  10.) 

Former  Proceedings. 

That  a  previous  action  has  already  been  brought  and  damages 
recovered  against  the  same  defendant  for  the  same  words  is  a  bar  to 
any  subsequent  action,  even  though  fresh  damage  has  since  arisen 
therefrom'.  {Ante,  p.  295.)  For  the  jury  in  the  former  action 
must  be  taken  to  have  assessed  the  damages  once  for  all  ;  and  the 
probability  or  possibility  that  this  subsequent  damage  would  follow 
should  have  been  submitted  to  their  consideration  then.  Whether 
this  is  so,  when  the  words  are  not  actionable  in  themselves,  may  be 
doubted.  (See  ante,  p.  306.)  So  if  the  prior  action  was  unsuccess- 
ful, this  will  also  be  a  bar  to  the  action  ;  unless,  indeed,  the  plain- 
tiff was  only  nonsuited  on  some  technical  ground,  and  the  judge,  in 
giving  judgment  of  nonsuit,  expressly  declared  that  it  was  a  com- 
mon law  nonsuit,  and  that  the  plaintiff  might  bring  a  second  action. 

But  it  must  be  clear  that  the  cause  of  action  is  the  same  in  both 
cases.  Thus,  where  the  declaration  in  an  action  of  slander  alleged 
that  the  defendant  spoke  of  the  plaintiff,  in  the  way  of  his  trade, 
the  words,  "  He  cheated  me  ; "  "  He  is  a  thief,  and  robbed  me  of 
£100  ;"  and  [*522]  contained  an  averment  of  special  damage,  the 
defendant  pleaded  a  former  judgment  recovered  for  the  same 
grievances  ;  but  the  record  of  the  previous  action  showed  the  slan- 
derous words  to  have  been,  "  That  thief  is  a  villain,  a  scoundrel, 
and  a  rascal,  and  I  can  prove  him  a  thief  at  any  moment  ; "  and  it 
neither  alleged  that  the  words  were  spoken  of  the  plaintiff  in  the 
way  of  his  trade,  nor  contained  an  averment  of  special  damage. 
This  was  held  to  be  no  bar  to  the  action.  "  I  cannot  think,"  said 
Crompton,  J.,  "  that  the  cause  of  action  in  that  record  which  con- 
tains words  charging  the  plaintiff  with  felony  is  the  same  cause  of 
action  as  that  in  "the  present  declaration,  which  imputes  a  charge 
against  the  plaintiff  as  a  trader."  (  Wadsworth  v.  Bentley,  23  L.  J. 
Q.  B.  3  ;  17  Jur.  1077  ;  2  C.  L.  R.  127  ;  1  B.  C.  Cases  (L.  &  M.) 
203.) 

(470) 


JOINDER    OF    CAUSES    OF    ACTION.  399 

So,  too,  a  previous  recovery  against  another  person  may  be  a  bar 
to  the  present  action,  if  the  former  defendant  was  jointly  concerned 
with  the  present  defendant  in  the  very  publication  now  sued  on. 
Thus,  if  A.  &  B.  he  in  partnership,  either  as  printers  or  publishers 
of  a  newspaper,  a  previous  judgment  recovered  against  A.  would  he 
a  bar  to  any  action  against  B.  for  the  same  libel,  even  though  the 
judgment  obtained  in  the  prior  action  be  not  satisfied.  (Brown  v. 
Wootton,  Cro.  Jac.  7::;  Velv.  G7  ;  Moo.  762;  King  v.  Hbare,  13 
M.  &  W.  494,  504  ;  Duke  of  Brim  wick  v.  Pepper,  2  C.  &  K.  (is:;  ; 
Brinsmeadv.  Harrison,  L.  R.  7  C.  P.  547  ;  41  L.  J.  C.  P.  190  ;  20 
W.  R.  784;  27  L.  T.  99;  Munster  v.  Cox,  1  Times  L.  R.  542.) 
But  this  is  only  because  they  ought  to  have  been  sued  jointly,  and 
could  even  before  the  Judicature  Act  have  been  so  sued.  Where 
two  are  severally  liable,  judgment  against  one  is  no  bar  to  an  action 
against  the  other.  Thus,  a  previous  judgment  against  the  proprie- 
tor of  a  newspaper,  even  though  satisfied,  is  no  bar  to  an  action  for 
the  same  libel  against  the  author.  (Frescoe  v.  May,  2  F.  &F.  123.) 
A  fortiori  the  fact  that  heavy  damages  have  been  recovered  against 
one  newspaper  is  no  bar  to  an  action  against  another  newspaper 
which  has  published  the  same  libel.  The  defendant  cannot  give 
evidence  in  chief  of  such  previous  recovery  even  in  mitigation  of 
damages  ( Creevy  v.  Carr,  7  C.  &  P.  64)  ;  nor  of  the  fact  that  other 
actions  are  pending.  {Harrison,  v.  Pearce,  1  F.  &  F.  567  ;  32  L. 
T.  (Old  8.)  298.)  In  America,  it  seems,  no  judgment  against  an- 
other will  be  a  bar,  unless  it  be  satisfied.  (Lovejoy  v.  Murray,  3 
Wallace  (Supr.  Ct.)  1  ;  Thomas  v.  Rumsay,  6  Johns.  (X.  Y.)  26  ; 
Brown  v.  Ilirley,  5  Upper  Canada,  Q.  B.  Rep.  (Old  S.)  734  ;  Bres- 
liwx.  Peck,  38  Hun.  (45  N.  Y.  Supr.  Ct.)  623.) 

That  former  criminal  proceedings  have  been  taken  by  way  of 
indictment  for  the  same  libel  is  no  bar  to  an  action,  whether  the 
prisoner  was  acquitted  or  convicted  (Peacock  v.  Reynal,  2  Brownlow 
[*523j  and  Goldesborough,  151  ;  16  M.  &  AY.  825,  n.)  ;  though  I 
should  not  advise  such  an  action  in  either  case,  except  under  very 
special  circumstances.  But  if  the  former  criminal  proceedings  were 
taken  by  way  of  criminal  information,  then,  if  the  rule  nisi  has 
been  made  absolute,  clearly  no  civil  action  can  be  brought  (B.  v. 
Sparrow,  2  T.  R.  198)  ;  and  probably  not  if  the  rule  was  discharged 
on  showing  cause,  all  the  courts  at  Westminster  being  now  merged 
in  one  (  Wakley  v.  Cooke  and  another,  16  M.  &  W.  822  ;  16  L.  J. 
Ex.  225)  ;  unless  the  court  thought  a  civil  action  the  more  appro- 
priate remedy,  and  discharged  the  rule  in  order  that  civil  proceedings 
might  be  taken.     (Ex  parte  Hoare,  23  L.  T.  83.) 

Joinder  of  Causes  of  Action. 

The  Judicature  Act  gives  a  plaintiff  very  wide  powers  of  joining 
several  causes  of  action  in  one  writ  ;  but  as  a  rule,  in  cases  of  libel 
and  slander  the  plaintiff  should  not  avail  himself  of  these  provisions. 
Defamation  is  a  matter  sui  generis,  and  it  would  be  imprudent  to 
complicate  the  issue  by  joining  irrelevant  claims.  Of  course  any 
number  of  libels  or  slanders  published  by  the  same  defendant  may 

(471) 


400  PRACTICE    AND    EVIDENCE. 

well  be  sued  for  in  the  same  action,  unless  they  be  wholly  discon- 
nected. 8o,'too,  a  claim  for  malicious  prosecution,  or  wrongful  dis- 
missal, or  even  assault,  may  be  joined,  if  it  arises  out  of  the  same 
circumstances,  and  will  be  substantiated  by  the  same  witnesses,  as 
the  claim  for  libel  or  slander.  Thus,  where  the  plaintiff  alleged  that 
a  foreign  merchant  and  his  Manchester  agent  had  conspired  to  libel 
the  plaintiff  in  the  way  of  his  trade,  the  court  allowed  this  joint 
cause  of  action  to  be  joined  with  claims  against  each  defendant 
severally  for  the  same  libels  or  other  similar  ones.  {Dtsilla  v. 
Schunck  &  Co.  &  Mis  &  Co.,  Weekly  Notes,  1880,  p.  90.) 

Claims  by  plaintiffs  jointly  may  be  joined  with  claims  by  them  or 
any  of  them  separately  against  the  same  defendant  (Order  XVIII. 
r.  G).  Claims  by  or  against  husband  and  wife  may  be  joined  with 
claims  by  or  against  either  of  them  separately  (Order  XVIII.  r.  4). 
But  these  rules  are  expressly  declared  (r.  7)  to  be  subject  to  it.  1,  8, 
9,  of  the  same  Order,  which  enact  that  if  a  plaintiff  unites  in  the 
same  action  several  causes  of  action  which  cannot  be  conveniently 
tried  or  disposed  of  together,  a  master  or  district  register,  on  the 
application  of  the  defendant,  may  strike  out  some  of  such  causes  of 
action,  or  order  separate  trials  to  be  had. 

Endorsement  on    Writ. 

The  writ  must  be  endorsed  with  a  plain  statement  of  the  nature 
of  the  action: — e.  g.,  "The  plaintiff's  claim  is  for  damages  for 
libel"  or  [*524]  "  for  slander  "  or  "  for  libel  and  slander."  The  words 
"  and  for  an  injunction  "  may  be  added  ;  see  ante,  p.  340.  But  in 
cases  of  newspaper  libel,  it  is  as  well  to  give  more  particulars  : — "  The 
plaintiff's  claim  is  for  damages  for  a  libel  published  by  the  defend- 
ant in  the  Gazette  for  Friday,  November  5th,"  1880."     This 

fuller  form  is  useful  as  identifying  the  libel  in  case  judgment  should 
be  allowed  to  go  by  default. 

It  is  not  necessary  to  state  what  sum  is  asked  as  damages  ;  for 
they  must  always  be  unliquidated  in  these  actions.  But  if  the  plain- 
tiff does  so,  he  should  be  sure  to  ask  enough,  for  although  he  may 
recover  less,  he  cannot  recover  more,  than  the  sum  claimed  on  the 
writ  ;  unless  the  judge  at  the  trial  will  consent,  after  verdict,  to 
amend  the  writ  under  Order  XXVIII.  r.  1.  At  the  same  time  it  is 
foolish  to  claim  an  extravagant  amount,  as  this  may  prevent  an 
advantageous  settlement. 

Matters  to  be  considered  by  the  Defendant. 

The  defendant  should,  at  the  earliest  moment  after  being  served 
with  the  writ,  consider  the  advisability  of  apologising.  If  he  is  in 
the  wrong,  he  ought  to  admit  it  at  once.  In  the  case  of  a  news- 
paper, it  is  particularly  desirable  that  this  question  should  be.  dealt 
with  at  once,  in  order  that  the  apology,  if  any,  may  be  published  in 
the  next  issue  of  the  paper. 

A  prompt  apology  will,  as  a  rule,  put  an  end  to  the  action.  It  is 
very  difficult  for  the  plaintiff  to  disregard  it  ;  if  he  does,  the  sym- 

(472) 


ADVICE   TO    DEFENDANT. 


401 


pathies  of  judge  and  jury  will  probably  be  with  the  defendant.  But 
such  apology  must  be  frank  and  full.  A  guarded,  half-hearted 
apology  will  only  injure  defendant's  position.  It  is  no  use  to  publish 
a  paragraph  expressing  astonishment  at  the  receipt  of  a  lawyer's 
letter,  and  attempting  to  explain  away  or  minimise  an  imputation 
clearly  made.  It  is  still  worse  to  assert,  as  is  sometimes  done,  thai 
defendant  has  done  the  plaintiff  a  kindness  in  making  a  false  charge 
against  him,  as  it  "has  afforded  him  an  opportunity  of  publicly 
denying  it."  See  the  remark  of  Mellor,  J.,  L.  R.  1  Q.  B.  701.  A 
so-called  apology  is  not  an  apology  at  all,  unless  it  unreservedly 
withdraws  all  imputations  and  expresses  regret  for  having  made  any. 
If  defendant  apologises  at  all,  he  should  do  so  freely  and  handsomely, 
as  well  as  promptly. 

Whether  he  has  apologised  or  not,  defendant  should  enter  an 
appearance  to  the  writ.  lie  should  not  allow  judgment  to  go  by 
default,  unless  he  is  utterly  and  hopelessly  in  the  wrong,  and  at  the 
[*525]  same  time  there  is  no  hope  of  a  compromise.  If  he  has  no 
defence,  he  should  apologise  and  pay  money  into  court  as  amends. 
This  he  can  do  at  any  stage  of  the  action  ;  and  the  earlier  it  is 
done,  the  better  for  the  defendant.  He  can  give  the  plaintiff  the 
notice  in  Form  No.  3,  Appendix  B,  referred  to  in  Order  XXII.  r.  4. 
In  most  cases  it  is  idle  to  pay  into  court  a  contemptuous  sum,  such 
as  a  farthing  or  a  shilling  ;  it  must  be  at  least  40s. 

If,  however,  the  action  is  one  that  should  be  fought,  the  defendant 
should  consider  whether  the  plaintiff  has  properly  shaped  his  claim, 
and  also  whether  security  cannot  be  obtained  for  costs.  As  to  se- 
curity, see  Order  LXV.  r.  6a  ;  Rides  of  December,  1885,  r.  42  ;  and 
Pisani  v.  Lawson,  5  Scott,  418  ;  6  Bing.  N.  C.  90.  If  in  the  same 
action  claims  by  the  plaintiffs  jointly, be  combined  with  claims  by 
them  or  any  of  them  separately,  the  defendant  may  apply  to  have 
them  severed,  on  the  ground  that  they  cannot  be  conveniently  dis- 
posed of  in  the  same  action.  (Order  XVII.  rr.  1,  7,  8,  9.)  If,  on 
the  other  hand,  two  or  more  actions  be  unnecessarily  brought 
against  the  same  defendant,  either  alone  or  with  others  for  the  same 
words,  or  for  separate  publication  of  similar  words,  or  for  two  dis- 
tinct libels  or  slanders  or  for  a  libel  and  a  slander  all  arising  out  of 
the  same  transaction  and  intimately  connected  with  each  other,  a 
master  at  chambers  will  consolidate  the  actions.  (Order  XLIX.  r.  8; 
Whiteley  v.  Adams,  15  C.  B.  N.  S.  392  ;  Jones  v.  Pritchard,  18  L. 
J.  Q.  B.  104  ;  6  D.  &  L.  529.)  An  application  for  consolidation 
may  be  made  at  any  time  after  service  of  the  writs,  and  without 
anv  consent  on  the  plaintiff 's  part,  (Rolling sworth  v.  Brodrick,  4 
A.*  &  E.  646  ;  6  N.  &  M.  240  ;  1  II.  W.  691.)  Where  a  plaintiff 
who  had  already  recovered  ^3,100  damages  in  actions  against  three 
newspapers,  brought  seventeen  more  actions  against  other  news- 
papers who  had  copied  the  same  libel,  the  court  refused  to  consoli- 
date, the  publications  being  distinct,  and  the  circumstances  attend- 
ing each  being  different,  but  stayed  sixteen  out  of  the  seventeen 
actions  on  terms.     (C oiled ge  v.  Pike,  56  L.  T.  124.) 

That  the  plaintiff  is  an  outlaw  is  ground  for  staying  proceedings. 
{R.  v.  Lowe  and  Clements,  8  Ex.  697  ;  22  L.  J.  Ex.  262.)     But  such 

26    LIB.  &  SLAN.  (473) 


402  PRACTICE    AND    EVIDENCE. 

stay  will  be  removed  on  the  reversal  of  the  outlawry.  {S'omers  v. 
Holt,  3  Dowl.  506.)  But  now  no  person  can  be  outlawed  in  any 
civil  proceeding.     (42  &  43  Vict.  c.  59,  s.  *3.) 

If  the  alleged  libel  was  published  by  order  of  either  House  of 
Parliament,  all  proceedings  will  be  stayed  at  once  on  production  of 
a  certificate  to  that  effect  by  the  Clerk  of  the  House,  with  an 
affidavit  verifying  such  certificate.  (3  &  4  Vict.  c.  9  ;  Appendix 
D.,2iost,  p.  715. 

[*526.]  Judgment  by  Default. 

If  the  defendant  fails  to  appear  to  the  writ,  the  plaintiff  must  file 
an  affidavit  of  due  service  (Order  XIII.  r.  2),  and  he  will  then  be  en- 
titled to  sign  interlocutory  judgment,  and  a  writ  of  inquiry  will 
issue  to  the  sheriff  bidding  him  summon  a  jury  to  assess  the 
damages.  As  there  is  no  statement  of  claim,  the  plaintiff  should 
give  the  defendant  formal  notice  a  reasonable  time  before  the  hearing 
that  he  intends  to  offer  before  the  under-sheriff  evidence  of  such  and 
such  special  damage.  Similarly  a  writ  of  inquiry  will  issue  if  de- 
fendant does  not  deliver  any  defence.  (Order  XXVII.  r.  4.).  The 
inquiry  is  conducted  in  the  same  way  as  a  trial  at  Nisi  Prius  :  the 
only  difference  is  that  the  plaintiff  must  recover  some  damages, 
though  as  a  rule  he  does  not  recover  such  heavy  damages  from  a 
sheriff's  jury  as  after  a  full  trial  at  Nisi  Prius.  Rules,  14,15,  19, 
34,  35,  36  and  37  of  Order  XXXVI.  apply  to  an  inquiry.  The 
plaintiff  need  not  adduce  any  evidence  at  all,  but  merely  put  in  the 
libel.  And  the  jury  will  not  in  such  a  case  be  bound  to  give  him 
nominal  damages  only.  {Tripp  v.  Thomas,  3  B.  &  C.  427  %  1  C.  & 
P.  477).  If  the  defendant  desires  to  have  the  damages  reduced,  he 
must  move  for  a  new  trial  within  the  prescribed  time.  Where  a 
sheriff's  jury  had  assessed  the  damages  at  one  shilling  only,  Field, 
J.,  at  chambers,  deprived  the  plaintiff  of  his  costs.  ( (rath.  v. 
Howarth,  Weekly  Notes,  1884,  p.  99  ;  Bitt.  Ch.  Cas.  79.)  The 
under-sheriff  apparently  is  not  a  "  judge  by  whom  a  matter  or  issue 
is  tried  with  a  jury"  within  the  meaning  of  Order  LXV.  r.  1, 
and  has  no  power  therefore  to  order  that  the  costs  shall  not  follow 
the  event  (ib). 

Remitting  the  Action  to  the  County  Court. 

By  virtue  of  sect.  10  of  the  County  Courts  Act,  1867  (30  &  31 
Vict.  c.  142)  : — "  It  shall  be  lawful  for  any  person  against  whom  an 
action  for  .  .  .  libel,  slander  ...  or  other  action  of  tort  may  be 
brought  in  a  Superior  Court,  to  make  an  affidavit  that  the  plaintiff 
has  no  visible  means  of  paying  the  costs  of  the  defendant  should  a 
verdict  be  not  found  for  the  plaintiff  ;  and  thereupon  a  judge  of  the 
court  in  which  the  action  is  brought  shall  have  power  to  make  an  or- 
der that  unless  the  plaintiff  shall,  within  a  time  to  be  therein  men- 
tioned, give  full  security  for  the  defendant's  costs  to  the  satisfaction  of 
one  of  the  masters  of  the  said  court,  or  satisfy  the  judge  that  he  has 
a  cause  of  action  fit  to  be  prosecuted  in  the  Superior  Court,  all  pro- 

(474) 


REMITTING    TO    COUNTY    COURT.  403 

ceedings  in  the  action  shall  be  stayed  ;  or  in  the  event  of  the  plaintiff 
being  unable  or  unwilling  to  give  such  security,  or  failing  to  satiety 
[*  527]  the  judge  as  aforesaid,  that  the  cause  he  remitted  for  trial 
before  a  County  Court  to  he  therein  named;  and  thereupon  the 
plaintiff  shall  lodge  the  original  writ  and  the  order  with  the 
registrar  of  such  County  Court,  who  shall  appoint  a  day  for  the 
hearing  of  the  cause,  notice  whereof  shall  he  sent  by  post  or  other- 
wise by  the  registrar  to  both  parties  or  their  attorneys  ;  and  the 
County  Court  so  named  shall  have  all  the  same  powers  and  jurisdic- 
tion with  respect  to  the  cause  as  if  both  parties  had  agreed,  by  a 
memorandum  signed  by  them,  that  the  said  County  Court  should 
have  power  to  try  the  said  action,  and  the  same  had  been  com- 
menced by  plaint  in  the  said  County  Court ;  and  the  costs  of  the 
parties  in  respect  of  the  proceedings  subsequent  to  the  order  of  the 
judge  of  the  Superior  Court  shall  be  allowed  according  to  the  scale 
of  costs  in  use  in  the  County  Courts,  and  the  costs  of  the  proceed- 
ings in  the  Superior  Court  shall  be  allowed  according  to  the  scale 
in  use  in  such  latter  court." 

It  is  expressly  enacted  by  the  Judicature  Act,  1873,  s.  C7,  that 
the  provisions  of  this  section  shall  apply  "  to  all  actions  commenced 
in  the  High  Court  of  Justice  in  'which  any  relief  is  sought  which 
can  be  given  in  a  Countg  Court.''''  The  words  in  italics  have  been 
much  discussed  in  Garnett  v.  Bradley,  (C.  A.)  2  Ex.  D.  349  ;  40 
L.  J.  Ex.  545  ;  25  W.  R.  053  ;  30  L.  T.  725  ;  (H.  L.)  3  App.  Cas. 
944  ;  48  L.  J.  Ex.  180  ;  20  W.  R.  098  ;  39  L.  T.  201  ;  and  the 
other  decisions  as  to  costs  ;  and  were  held,  when  taken  with  Order 
LXV.  r.  1,  to  confine  the  operation  of  the  County  Courts  Act, 
1807,  to  actions  which  can  he  commenced  in  the  County  Court. 
But  it  could  hardly,  I  think,  he  contended  that  sect.  10  applies  only 
to  actions  of  tort  which  can  be  commenced  in  the  County  Court,  as 
it  expressly  mentions  "  libel  "  and  "  slander."  And  as  a  matter  of 
practice  actions  of  defamation  are  constantly  remitted  to  the 
County  Court  under  this  section.  And  now  see  Stokes  v.  Stokes 
(June '7th,  1887),  Weekly  Notes,  p.  110. 

The  application  can  be  made  at  any  stage  of  the  action  ;  but  only 
by  the  defendant.  He  must  make  an  affidavit,  showing  a  good 
defence  on  the  merits,  that  the  plaintiff  has  no  visible  means,  and 
that  there  will  be  a  saving  of  costs,  and  greater  convenience  in  try- 
ing in  the  County  Court.  But  no  order  will  be  made  (l)  if  the 
action  is  one  fit  to  be  prosecuted  in  the  Superior  Court,  because  in- 
volving important  points  of  law,  or  because  itis  a  test  action,  &c. 
(see  Critehley  v.  Brown,  2  Times  L.  R.  238)  ;  or  (2)  if  the  plaintiff 
can  prove  that  he  has  visible  means  of  paying  costs.  "  Visible  " 
means  tangible,  such  property  as  the  defendant  could  reach  in  the 
event  of  his  obtaining  judgment  for  his  costs.  (  Counsel  v.  Garvie, 
Ir.  R.  5  C.  L.  74  ;  Watson  v.  McCann,  0  L.  R.  Ir.  21  ;  and  see 
Sykes  v.  Sykes,  L.  R.  4  [*  528]  C.  P.  045  ;  38  L.  J.  C.  P.  281  ;  17 
W.  R.  799  ;  20  L.  T.  003.)  The  plaintiff  also  generally  denies  that 
there  will  be  any-  saving  of  costs  or  convenience  in  trying  in  the 
County  Court.  It  is  practically  useless  for  a  defendant  to  appeal 
from  the  master's  order.     (Palmer  v.  Roberts,  22  W.  R.  577,  n.  ;  29 

(457) 


404  TRACTICE    A!ND    EVIDENCE. 

L.  T.  403.)  The  plaintiff  may  appeal  if  the  order  is  obviously 
wrong.  {Jennings  and  wife  v.  London  General  Omnibus  Co.,  30 
L.  T.  266  ;  Owens  v.  Woosman,  L.  R.  3  Q.  B.  469  ;  9  B.  &  S.  243  ; 
37  L.  .!.  Q.  B.  159  ;  16  W.  R.  932  ;  L.  T.  357  ;  Holmes  v.  Mount- 
Stephen,  L.  R.  10  C.  P.  474  ;   33  L.  T.  351.) 

If  an  order  be  made  remitting  the  action  its  effect  is  practically  to 
transform  the  action  into  a  County  Court  cause.  As  to  the  further 
conduct  of  the  action,  see  post,  p.  585. 

Statement  of  Claim. 

The  defendant,  on  appearance,  should  require  a  statement  of 
claim.  And  even  if  he  does  not,  I  should  advise  plaintiff  still  to 
deliver  one,  as  no  taxing-master  would  ever  consider  the  delivery 
of  a  statement  of  claim  in  an  action  of  libel  or  slander  to  be  "  un- 
necessary or  improper."     (Orel.  XX.  r.  1.) 

The  very  words  complained  of  must  be  set  out  by  the  plaintiff  in 
his  statement  of  claim,  "  in  order  that  the  court  may  judge  whether 
they  constitute  a  ground  of  action  "  (per  Lord  Tenterden,  3  B.  & 
Aid.  50(3),  and  also  because  "  the  defendant  is  entitled  to  know 
the  precise  charge  against  him,  and  cannot  shape  his  case  until 
he  knows."  (Per  Lord  Coleridge,  in  Harris  v.  Warre,  4  C.  P.  D. 
228  ;  48  L.  J.  C.  P.  310  ;  27  W.  R.  461  ;  40  L.  T.  429.)  It  is  not 
sufficient  to  give  the  substance  or  purport  of  the  libel  or  slander 
with  innuendoes.  {Newton  v.  Stubbs,  8  Mod.  71  ;  Cooke  v.  Cox,  3 
M.  &  S.  110  ;  Wood  v.  Brown,  6  Taunt.  169  ;  Wood  v.  Adam,  6 
Bing.  481  ;  Wright  v.  Clements,  3  B.  &  Aid.  503  ;  Saunders  v. 
Mate,  1  H.  &  N.  402  ;  Solomon  v.  Lawson,  8  Q.  B.  823  ;  15  L.  J. 
Q.  B.  253  ;  10  Jur.  796.)  So,  too,  in  cases  of  slander  of  title  the 
words  must  be  set  out  verbatim.  (  Gutsole  v.  Mathers,  1  M.  & 
W.  495  ;  1  Tyrw.  &  Gr.  694  ;  5  Dowl.  69  ;  2  Gale,  64.)  Orel. 
XIX.  r.  21  does  not  apply  ;  for  the  precise  words  are  most 
material.  (Harris  v.  Warre,  supra.)  The  defendant  may  be  in- 
terrogateel  as  to  the  exact  words  he  uttered  if  the  plaintiff  can- 
hot  otherwise  discover  them  (Atkinson  v.  FosbroJce,  L.  R.  1  Q.  B. 
628  ;  35  L.  J.  Q.  B.  182  ;  14  W.  R.  832  ;  14  L.  T.  553)  ;  but  not 
before  he  delivers  his  statement  of  claim,  except  in  very  special 
Circumstances.  (Strange  v.  Dowdney,  38  J.  P.  724,  756.)  It  will 
generally  be  safer  and  cheaper  in  the  end  to  deliver  a  claim,  and  sub- 
sequently, after  discovery,  to  amend  it,  if  necessary.  If  the  words 
[*529]  are  in  a  foreign  language,  they  should  be  set  out  verbatim  in 
such  language.  (Zenobiox.  Axtell,  6  T.  R.  162  ;  3  M.  &  S.  116. 
And  see  E.  v.  Manasseh  Goldstein,  3  Brod.  &  B.  201  ;  7  Moore,  1  ; 
10  Price,  88;  R.  &  R.  C.  C.  473.)  And  an  exact  translation  should 
be  added.  Take  care  not  to  translate  actionable  words  into  non- 
actionable,  as  was  clone  in  Jioss  v.  Lawrence,  (1651),  Sty.  263.  It 
was  formerly  necessary  to  aver  expressly  in  the  case  of  foreign  words 
that  those  present  understood  them.  (Jones  v.  Havers,  Cro.  Eliz. 
496  ;  Price  v.  Jenkings,  Cro.  Eliz.  865  ;  and  per  Williams,  J.,  in 
Amatin  y.Hamm,  8  C.  B.  N.  S.  597;  29  L.  J.  C.  P.  313;  7  Jur.  N.  S. 
47 ;  8  W.  R.  470.)  No  such  averment  is  now  essential;  though  the  fact 

(476) 


STATEMENT    OP    CLAIM.  405 

must  of  course  still  be  proved  at  the  trial.  (Ante,  p.  100;  and  see  Prec- 
edents of  Pleadings,  Appendix  A,  No.  2.) 

If  the  slander  was  contained  in  a  questi it  must  be  sel  oul  as  a 

question,  and  not  as  u  fact  affirmed.  (Harries  v.  Hollotoay,  8  T.  K. 
150.)  So,  if  the  slander  consists  in  the  answer  to  a  question,  and  the 
answer  alone  is  unintelligible,  both  question  and  answer  should  be 
set  out  exactly  as  they  were  spoken.  (Sec  Bromage  v.  Pn.st,er,  I  B. 
&  C.  247.)  So,  if  the  words  were  "  Woor  says  M'Pherson  is  bank- 
rupt," they  must  he  sel  out;  if  the  declaration  alleged  thai  the 
defendant' had  said  "M'Pherson  is  bankrupt "  merely,  the  variance 
would  formerly  have  been  fatal  (  M'Pherson  v.  Daniels,  10  B.  &  ( '.  at 
p.  274  ;  Bell  v.  JByrne,  53  East,  544  ;  Pearce  v.  Rogers,  2  V.  &.  F 
137)  ;  but  now  such  a  variance  would  be  amended,  on  payment  of 
the  costs,  if  any,  thereby  occasioned.  (Smith  v.  Knowelden,  2  Mi 
&  Gr.  501  ;  see  post,  pp,  504-5.)  If  the  libel  consist  of  two  letters 
published  in  successive  issues  of  a  newspaper,  neither  of  which  is  a 
complete  libel  without  the  other,  both  must  be  set  out  verbatim. 
(Solomon  v.  Lawson,  8  Q.  B.  82:5 ;  15  L.  J.  Q.  B.  253;  10  Jur.  790.) 
But  in  other  cases  it  is  not  necessary  to  set  out  the  whole  of  an 
article  or  review  containing  libellous  passages  ;  it  is  sufficient  to  set 
out  the  libellous  passages  only,  provided  that  nothing  be  omitted 
which  qualities  or  alters  their  sense.  If,  however,  the  meaning  of 
the  libellous  passages  taken  singly  is  not  clear,  or  if  the  rest  of  the 
article  would  in  any  substantial* degree  vary  the  meaning  of  the 
words  complained  of,  the  whole  must  be  set  out.  (Cartwright  v. 
Wright,  5  B.  &  Aid.  015  ;  Buckingham  v.  Murray,  2  C.  &  P.  47  ; 
Rutherford  v.  Eoans,  0  Bing.  451  ;  4  C.  &  P.  74  ;  Rainy  v.  Bravo, 
L.  R  4  P.  C.  287  ;  20  W.  R.  873.)  Where  detached  portions  of  a 
book  or  article  are  thus  given,  it  should  appear  on  the  statement  of 
claim  that  they  are  detached  portions  (  see  Precedent,  No.  7)  ;  they 
should  not  be  printed  as  though  they  ran  on  continuously.  (Per 
Lord  Ellenborough,  in  Tabart  [*  530]  v.  Tipper,  1  Camp.  353.) 
Still,  if  they  are  so  printed,  the  variance  will  not  be  fatal,  unless  the 
defendant  can  show  that  the  sense  is  materially  altered  by  their 
being  so  printed.  (Re  Crowe,  3  Cox,  C.  C.  123  ;  R.  v.  Fussell,  ib. 
291.) 

It  must  be  alleged  that  the  defendant  "  spoke  and  published  "  or 
"  wrote  and  published  "  these  words.  It  is  essential  in  cases  of  libel 
to  add  the  words  "  and  published,"  as  writing  a  libel  which  is  never 
published  is  no  tort.  Still  it  is  not  absolutely  necessary  to  use  the 
very  word  "  published  ;"  in  Baldwin  v.  Elphinstori  (2  W.  151.  1037) 
the  phrase  "printed,  and.  cause  to  be  printed"  was  held  sufficient. 
Further,  it  must  always  be  alleged  that  the  words  were  spoken  or 
written  "  of  and  concerning  the  plaintiff."  Then  it  should  be  averred 
that  the  defendant  spoke  or  wrote  and  published  the  words  "falsely 
and  maliciously."  This  is  a  time-honoured  phrase  which  appears  in 
every  statement  of  claim  ;  and  it  would  be  foolish  to  idly  raise  a 
point  of  law  by  omitting  it  ;  though  in  my  opinion  its  omission 
would  not  be  a" fatal  defect.  For,  by  r.  25  of  Order  XIX.,  "  neither 
party  need  in  an}'  pleading  allege  any  matter  of  fact  which  the  law 
presumes  in  his  favour,  or  as  to  which  the  burden  of  proof  lies  upon 

(477j 


406  PRACTICE    AND    EVIDENCE. 

the  other  side,  unless  the  same  has  first  been  specifically  denied." 
As  long  ago  as  1652,  Rolle,  C.  J.,  held  these  words  unnecessary  in 
a  declaration.  (A. non.,  Style,  392.)  In  1813,  Lord  Ellenborough 
held  the  absence  of  the  word  "falsely"  immaterial,  "unlawfully 
and  maliciously  "  being  present.  (Howe  v.  Roach,  1  M.  &  S.  309.) 
So,  too,  under  the  old  practice  it  was  decided  that  if  "falsely"  was 
inserted,  "maliciously"  might  be  omitted.  (Dlercer  v.  Sparks 
(1586),  Owen,  51  ;  Noy,-35  ;  Anon.  (1596),  Moo.  459.  See  per  Brett; 
L.  J.,  in  Clark  v.  Moli/neux,  3  Q.  B.  D.  247  ;  ante,  p.  27  J.)  There 
is,  however,  a  practical  convenience  in  alleging  malice  in  the  state- 
ment of  claim,  viz.,  if  the  defendant  pleads  privilege,  no  special 
reply  is  then  necessary  ;  the  formal  averment  in  the  statement  of 
claim  takes  a  new  meaning,  and  becomes  an  allegation  of  express 
malice. 

But  the  part  of  the  statement  of  claim  which  requires  most  care 
in  drafting  is  the  innuendo.  As  to  its  office,  see  ante,  pp.  100—117. 
Where  the  words  are  clearly  actionable  on  the  face  of  them,  no 
innuendo  is  necessary,  though  even  here  one  is  frequently  inserted. 
But  whenever  the  words  are  actionable  only  in  some  secondary 
sense,  or  by  reason  of  some  surrounding  circumstances,  an  innuendo 
is  essential  to  the  plaintiff's  success.  So,  too,  if  the  plaintiff  be  not 
named,  an  innuendo  must  be  inserted,  "  meaning  thereby  the  plain- 
tiff," &c.  ;  and  it  is  well,  though  not  essential,  to  state  facts  which 
make  it  clear  that  the  plaintiff  is  the  person  referred  to.  (See  ante, 
p.  128.) 

[*53l]  Besides  the  innuendo,  the  pleader  was  formerly  required  to 
insert  a  variety  of  minute  averments,  which  were  supposed  to  increase 
the  "  certainty  "  of  the  pleading.  Thus  it  was  necessary  that  there 
should  be  a  colloquium,  an  averment  that  the  defendant  was  speak- 
ing of  the  plaintiff,  as  well  as  constant  innuendoes,  and  other  allega- 
tions properly  connecting  these  innuendoes  with  the  introductorv 
averments  which  describe  the  locality,  the  relationship  between  the 
various  persons  mentioned,  and  all  the  surrounding  circumstances 
necessary  to  fully  elucidate  the  defendant's  meaning.  These  mat- 
ters could  not  be  proved  at  the  trial,  unless  they  were  set  out  on  the 
record.  (See  ante,  pp.  118^-120,  128.)  And  if  some  of  them  were 
proved  at  the  trial  and  not  others,  many  legal  refinements  arose  as 
to  how  far  such  allegations  were  or  were  not  divisible.  But  now, 
by  s.  61  of  the  C.  L.  P.  Act,  1852  (post,  p.  721),  the  colloquium 
and  all  other  prefatory  averments  are  rendered  unnecessary  ;  and  r. 
4  of  Ord.  XIX.  requires  that  "  every  pleading  shall  contain,  and 
contain  only,  a  statement  in  a  summary  form  of  the  material  facts 
on  which  the  party  pleading  relies,  but  not  the  evidence  by  which 
they  are  to  be  proved."  The  only  case  in  which  an  introductory 
averment  is  now  essential  is  where  the  words  are  actionable  only  by 
reason  of  being  spoken  of  the  plaintiff  in  the  way  of  his  office,  pro- 
fession or  trade.  Here  there  must  always  be  an  averment  that  the  plain- 
tiff actually  held  the  office  or  carried  on  the  profession  or  trade  at  the 
time  the  words  were  spoken.  (  Gallwey  v.  Marshall,  9  Ex.  300  ;  23 
L.  J.  Ex.  78  ;  2  C.  L.  R.  399.)  And  there  should  also  be  an  aver- 
ment that  the  wrords  were  spoken  of  the  plaintiff  with  reference  to 

(478) 


STATEMENT    OF    CLAIM.  407 

such  office,  profession,  or  trade.  But  if  the  former  allegation  ap- 
pear, the  omission  of  the  latter  is  not  fatal,  as  the  judge  will  in  a 
proper  cast-  amend  the  statement  of  claim  by  inserting  an  allegation 
to  that  effect  (Ramsdale  v.  Greenacre,  l  F.  &  F.  61.)  But  it  is 
often  desirable  in  other  cases  to  plead  some  introductory  averment 
which,  though  not  strictly  necessary,  will  help  to  make  the  cast- 
clear,  by  explaining  what  is  to  follow.  (See  Precedents  of  Plead- 
ing, No's.  4,  5,  8,  11,  12,  13.)  Remember,  however,  that  the  pres- 
ence of  such  introductory  averments  will  not  cure  the  omission  of 
a  proper  innuendo.  (Simmons  v.  Mitchell,  6  App.  ('as.  156  ;  50 
L.    J.    P.    C.    11  ;  29  W.  R.  401  ;  43  L.  T.  710  ;  45  J.  P.  237.) 

Also,  where  the  words  were  spoken  ironically,  it  must  be  averred 
that  they  were  so  spoken,  or  the  statement  of  claim  will  disclose  no 
cause  of  action  (ante,  p.  1  L6). 

Always  aver,  wherever  there  is  any  ground  fordoingso,  that  the 
words  were  spoken  of  the  plaintiff  in  the  way  of  his  trade.  This  alle- 
gation won  the  demurrer  for  the  plaintiff  in  Foulger  v.  Newcomb, 
L.  R.  [*532]  2  Ex.  327  ;  36  L.J.  Ex.  169  ;  15  W.  R.  1181  ;  16  L. 
T.  595  ;  and  had  it  been  present  it  would  probably  have  saved 
Miller  v.  David,  L.  R.  9  C.  P.  118  ;  43  L.  J.  C.  P.  84  ;  22  W.  R. 
332  ;  30  L.  T.  58.  Yet  it  does  not  always  avail  :  see  Sheahan  v. 
Ahearne,  It.  R.  9  C.  L.  412. 

As  to  the  claim  for  damages.  Where  the  words  are  clearly  ac- 
tionable per  se,  it  is  of  course  unnecessaiy  to  claim  general  damages, 
though  it  is  sometimes  done  :  but  any  special  damage  that  may 
have  accrued  must  in  every  case  be  specifically  stated,  and  with 
sufficient  particularity  to  enable  the  defendant  to  know  precisely 
what  case  he  has  to  meet ;  otherwise  such  evidence  will  be  rejected 
at  the  trial.  (Bluck  v.  Lovering,  1  Times  L.  R.  497.)  If  the 
special  damage  alleged  be  loss  of  custom,  the  customers'  names 
must  be  given,  unless  it  is  clear  from  the  circumstances  that  plaint- 
iff would  not  have  known  their  names.  (Evans  v.  Harries,  26  L.  J. 
Ex.  32,  ante,  p.  307.)  So,  if  loss  of  marriage  be  alleged,  the  gentle- 
man or  lady  must  be  named.  (See  Precedents,  Nos.  5,  10,  14,  15, 
16,  17.)  If  such  names  and  other  details  of  the  alleged  loss  be  not 
given  in  the  pleading,  a  master  at  chambers  will  order  particulars 
to  be  delivered,  or,  in  default,  that  the  allegations  be  struck  out  of 
the  statement  of  claim.  (Dimsdale  v.  Goodlake  (1876),  40  J.  P. 
792.)  As  to  what  constitutes  special  damages,  see  ante,  pp.  297 — 
309. 

An  injunction  may  also  be  claimed,  if  there  is  any  reason  to  ap- 
prehend'any  further  publication  of  the  defamatory  words  ;  e.  g., 
"  An  injunction  to  restrain  the  defendant  from  publishing  the  said 
pamphlet  or  any  other  libels  or  slanders  affecting  the  plaintiff  in 
his  profession  and  offices,"  or  more  briefly  :  "An  injunction  to  re- 
strain the  defendant  from  similar  publications  in  future."  (And 
see  15  Q.  B.  D.  650  ;  and  Precedents,  Nos.  7  and  13.) 

Lastly,  some  place  of  trial  must  be  named,  unless  the  plaintiff  de- 
sires that  the  action  be  tried  in  Middlesex.  His  choice  will  be  de- 
termined as  a  rule  by  considerations  of  economy  and  convenience  ; 
he  will  fix  the  trial  in  the  place  that  best  suits  himself  and  his  wit- 

(■17J> 


408  PRACTICE    AND    EVIDENCE. 

nesses.  But  if  the  action  be  against  a  newspaper  of  wide  circula- 
tion in  the  district,  or  if  the  defendant  in  any  other  way  is  popular 
or  powerful  in  his  own  neighborhood,  the  plaintiff  should  decide  on 
Middlesex,  where  he  is  sure  of  an  impartial  jury. 

Instructions  for  Defence. 

On  receiving  the  statement  of  claim,  the  defendant  should  care- 
fully consider  his  position,  and  decide  on  his  course  of  action. 
Often  it  would  be  well  for  him  to  apologize  at  once,  and  pay  money 
into  court.  In  some  few  cases  he  should  declare  war  to  the  knife, 
and  justify.  But  it  is  no  use  for  him  to  send  his  counsel  merely  a 
copy  of  the  statement  of  claim  with  instructions  consisting  solely 
of  the  words  "  Counsel  will  please  draw  the  necessary  pleas."  The 
defence  in  an  action  of  libel  or  slander  is  a  most  important  docu- 
ment, and  should  not  be  drafted  hurriedly  or  on  insufficient  materials; 
Before  settling  it,  counsel  should  be  put  in  possession  of  all  the 
facts.  He  should  be  asked  to  advise  whether  the  occasion  was 
privileged  ;  and  if  there  is  any  thought  of  a  justification,  the  evi- 
dence by  which  it  is  proposed  to  support  that  plea  should  be 
submitted  to  counsel  in  full  detail,  and  his  opinion  taken  as  to  its 
sufficiency.  If  no  definite  instructions  be  given  to  counsel,  he  will 
content  himself  with  putting  plaintiff  to  proof  of  every  material 
allegation  in  the  statement  of  claim. 

Amendment. 

The  defendant's  counsel,  on  receiving  the  statement  of  claim, 
should  first  consider  if  it  discloses  any  cause  of  action.  If  the 
words  are  not  actionable  per  se,  and  no  special  damage  is  alleged, 
he  should  take  out  a  summons  under  Ord.  XXV.  r.  4,  to  have  the 
action  dismissed  as  being  frivolous  and  vexatious.  So,  if  the  words 
set  out  are  not  defamatory,  in  their  ordinary  signification,  and  there 
is  no  innuendo,  or  if  the  innuendo  alleges  a  meaning  which  it  is 
clear  that  the  words  will  not  bear.  In  other  cases,  e.  g.,  where  the 
words  complained  of  are  not  set  out  verbatim,  a.  summons  should  be 
taken  out  under  Ord.  XIX.  r.  27.  But  unless  the  defect  is  seriously 
embarrassing,  it  is  often  better  policy  to  leave  it  unamended  ;  it  is 
no  part  of  the  defendant's  duty  to  reform  the  plaintiff's  pleading. 
But  be  careful  in  drawing  the  defence  not  to  aid  the  defect  in  the 
claim  in  any  way  ;  the  less  said  about  that  part  of  the  pleading  the 
better  ;  do  not  admit  it  ;  if  need  be,  traverse  it  in  so  many  words  ; 
but  after  such  denial,  avoid  the  whole  topic,  if  possible  ;  leaving 
plaintiff's  counsel  to  explain  it  to  the  judge  at  the  trial,  if  he  can. 

Particulars. 

But  the  more  usual  application  at  this  stage  is  for  particulars. 
(See  Ord.  XIX.  rr.  7,  8.) 

It  is  now  settled  practice  that  the  defendant  is  entitled  to  par- 
ticulars of  the  places  where,  the  times   when,  and   the    persons   to 

(480)     . 


TRAVERSES.  409 

whom  the  alleged  slanders  or  libels  were  published,  if  such  details 
are  not  given  [*534]  in  the  statement  of  claim.  (Moselle  v.  Bu- 
chanan, 16  Q.  B.  D.  656;  r,:>  L.J.  Q.  B.  376;  34  W.  R.  488; 
extending  the  decision  in  Bradbury  v.  Cooper,  12  Q.  B.  D.  94  ;  53 
L.  J.  Q.  B.  558  ;  32  W.  R.  32  ;  48  J.  P.   198.) 

It  is  no  objection  that  the  defendanl  must  know  already  to  whom 
he  spoke  and  wrote  ;  he  is  entitled  to  know  the  case  that  is  going 
to  be  made  against  him.  But,  of  course,  the  plaintiff  cannot  be 
compelled  to  give  the  names  of  the  persons  passing  in  the  street  at 
the  time  the"  alleged  slander  was  uttered.  (  Wingard  v.  Cox, 
Weekly  Notes,  1876,  p.  106  ;  Bitt.  144  ;  20  Sol.  J.  .'541  ;  60  L.  T. 
Notes,  304.)  Nor  can  a  person  libelled  in  a  newspaper  be  expected 
to  give  the  names  of  all  who  take  the  paper. 

So,  too,  whenever  any  special  damage  is  claimed,  but  not  with 
sufficient  detail,  particulars  will  be  ordered  of  the  alleged  damage, 
setting  out  the  names  of  the  customers  wdio  had  ceased  to  deal  with 
the  plaintiff  in  consequence  of  defendant's  words.  This  is  a  very 
useful  order  ;  as,  if  plaintiff  cannot  give  the  names,  he  will  be  com- 
pelled to  strike  out  the  allegation  of  special  damage,  and  the  sum- 
mons should  ask  that  it  be  struck  out  if  such  particulars  be  not 
delivered.  (See  Precedents  of  Pleading,  Nos.  10,  20.)  Particulars 
of  general  damage  will,  of  course,  never  be  ordered  ;  as  such  dam- 
age exists  rather  in  contemplation  of  law  than  in  reality. 

Defence. 

Fonnerly,  by  one  short  and  convenient  plea,  "  Not  Guilty,"  the 
defendant  denied  the  publication  of  the  defamatory  matter,  denied 
its  publication  in  the  defamatory  sense,  imputed  by  the  innuendo, 
or  in  any  defamatory  actionable  sense  which  the  words  themselves 
imported,  asserted  that  the  occasion  was  privileged,  and  also  denied 
that  the  words  were  spoken  of  the  plaintiff  in  the  way  of  his  pro- 
fession or  trade,  whenever  they  were  alleged  to  have  been  so  spoken. 
But  now  this  compendious  mode  of  pleading  is  abolished.  "  Not 
Guilty  "  can  no  longer  be  pleaded.  The  defendant  must  now  deal 
specifically  with  every  allegation  of  which  he  does  not  admit  the 
truth.  It  will  be  necessary,  therefore,  to  consider  the  following 
several  pleas  : — 

1.  Traverses  putting  plaintiff  to  proof  of  his  case. 

2.  Objections  on  points  of  law. 

3.  Privilege. 

4.  Justification. 

5.  Other  special  defences. 

[*  535]     6.  Payment  into  court. 

7.  Apology. 

8.  The  defendant  may  also  set  up  a  counterclaim. 

1.    Traverses. 

It  was  intended  by  the  framers  of  the  Judicature  Act,  that  each 
party  in  his  pleading  should  frankly  admit  every  statement  of  fact 

(481) 


410  PRACTICE   AND    EVIDE2TCE. 

which  he  does  not  intend  to  seriously  dispute  at  the  trial.  But  this 
intention  has  not  been  carried  out.  Counsel  hesitate  to  make  ad- 
missions unless  they  are  expressly  instructed  to  do  so,  which  they 
very  seldom  are.  No  doubt  it  may  sometimes  be  desirable  to  deny 
uttering  or  writing  the  words,  so  as  to  compel  the  plaintiff  to  call 
as  his  witness  the  person  to  whom  the  defendant  spoke  or  wrote, 
whom  then  the  defendant  cross-examines  to  show  privilege.  But  as 
a  rule  the  defendant  should  admit  the  publication  whenever  it  can 
be  proved  against  him  without  trouble.  Do  not  deny  everything  in 
the  Statement  of  Claim.  It  looks  weak,  as  though  the  defendant 
had  no  real  defence.  At  the  same  time,  be  careful  how  you  admit 
even  the  introductory  paragraphs,  which  may  appear  immaterial  ; 
they  were  not  inserted  without  some  purpose.  Every  allegation  of 
fact  not  denied  specifically  shall  be  taken  to  be  admitted.  (Ord. 
XIX.  r.  13.)     The  following  are  the  most  usual  traverses  : — 

1.  "The  defendant  never  spoke  or  published  the  words  set  out  in 
paragraph  2  of  the  Statement  of  Claim."  The  words  "  either  falsely 
or  maliciously"  must  not  be  added.  {Belt  v.  Lawes,  51  L.  J.  Q.  B. 
359.)  For  the  plea,  as  it  stands  without  them,  is  a  denial  of  the* 
publication  in  fact  ;  if  the  plaintiff  prove  publication,  the  law  will 
presume  it  to  have  been  false  and  malicious,  until  the  defendant 
proves  either  privilege  or  a  justification  ;  and  both  privilege  and 
justification  must  be  specially  pleaded,  not  merely  suggested  by  the 
addition  Of  four  wTords  to  a  plea  which  realty  raises  quite  a  different 
defence. 

2.  "  The  defendant  never  spoke  or  published  the  words  set  out  in 
paragraph  2  of  the  Statement  of  Claim  with  the  meaning  as  therein 
alleged."  This  is  a  traverse  of  the  innuendo.  The  innuendo,  if 
there  be  one,  should  always  be  traversed  ;  as  the  plaintiff  is  sure  to 
have  put  the  blackest  construction  on  the  words. 

3.  '*  The  plaintiff  did  not,  at  the  date  of  the  publication,  if  any, 
of  the  said  words,  carry  on  the  business  of  a  butcher  as  alleged  in 
paragraph   1  of  the  Statement  of   Claim";  or  "  The  plaintiff  was 

not  at  the  date,  &c,  vicar  of  as  alleged,"  or  "  was  not  then 

a  [*  536]  partner  in  the  firm  of  Mears  and  Stainbank  as  alleged." 
This  is  a  traverse  of  the  special  character  in  which  the  plaintiff 
sues  ;  and  must  always  be  specially  pleaded.  (Rules  of  Trinity 
Term,  1853,  r.  16  ;  R.' S.  C.  Ord.  XIX.  r.  11.)  If  the  defendant 
also  wishes  to  raise  at  the  trial  the  defence  that  plaintiff's  trade  is 
illegal,  this  also  must  now  be  specially  pleaded.  [Manning  v.  Clem- 
ent, 7  Bing.  362  ;  5  M.  &  E.  211,  is  no  longer  law  on  this  point.) 

4.  "The  defendant  denies  that  he  spoke  or  published  the  said 
words,  if  at  all,  with  reference  to  the  plaintiff  in   the  way  of  his 

said  business  or  trade  of  a  butcher  [office  or  profession  of ]." 

This  plea  did  not  require  to  be  pleaded  specially  under  the  old  sys- 
tem, and  it  would,  therefore,  I  presume  be  now  deemed  to  be 
included  in  a  general  denial  of  the  allegations  in  the  paragraph. 
But  it  is  better  to  set  it  out  plainly. 

5.  "The  words  did  not  refer  to'the  plaintiff."  See  R.  S.  C.  App. 
E.  s.  3,  No.  2  (Wilson,  5th  edit.  p.  693).  This  defence  seldom 
succeeds. 

(482) 


PRIVILEGE.  411 

6.  No  denial  or  defence  is  necessary  "  as  to  damages  claimed  or 
their  amount  ;  but  they  shall  be  deemed  to  he  put  in  issue  in  all 
cases,  unless  expressly  admitted."  (Ord.  XXI.  r.  4.  And  see 
Ord.  XIX.  r.  IT.) 

2.  Objections  on  Points  of  Law. 

Demurrers  are  now  abolished  (Ord.  XXV.  r.  I).  But  r.  2  of  the 
same  order  enacts  that  : — "Any  party  shall  be  entitled  to  raise  by 
his  pleadings  any  point  of  law,  and  any  point  so  raised  shall  be  dis- 
posed of  by  the  judge  who  tries  the  cause  at  or  after  the  trial,  pro- 
vided that  by  consent  of  the  parties,  or  by  order  of  the  court  or  a 
judge  on  the  application  of  either  party,  the  same  may  be  set 'down 
for  hearing  and  disposed  of  at  any  time  before  the  trial."  And  r.  3, 
provides  that: — "If,  in  the  opinion  of  the  court  or  a  judge,  the 
decision  of  such  point  of  law  substantially  disposes  of  the  whole 
action,  or  of  any  distinct  cause  of  action  therein,  the  court  or  judge 
may  thereupon  dismiss  the  action  or  make  such  other  order  therein  as 
maybe  just."  Hence  it  is  clearly  worth  while  to  raise  on  the  plead- 
ings any  point  of  law  which  will  substantially  dispose  of  the  whole 
action.  A  specimen  is  given  in  the  Rules  of  1883,  Appendix  E.  s.  3, 
No.  2  (Wilson,  5th  edit.  093):— "The  defendant  will  object  that 
the  special  damage  stated  is  not  sufficient  in  point  of  law  to  sustain 
this  action."  Similarly,  if  no  special  damage  be  alleged,  the  defend- 
ant may  object  "that  the  said  words  are  not  actionable  without 
proof  of  special  damage  ;"  or  if  they  be  printed  "that  the  matter 
[*53  7]  contained  in  the  same  paragraph  is  no  libel."  This  was  held 
a  good  plea  in  Ireland  before  the  Judicature  Act,  on  the  ground  that 
it  raised  a  question  which  was  now  for  the  jury,  not  the  judge. 
(Nixon  v.  Jlarveg,  8  Ir.  C.  L.  Rep.  446.)  And  since  then  such  a 
plea  has  been  freely  used  in  Ireland.  (See  Maguire  v.  ITnox,  Ir.  R. 
5  C.  L.  408  ;  Stannus  v.  Finlay,  Ir.  R.  8  C.  L.  264  ;  Oosgrave  v. 
Trade  Auxiliary  Co.,  Ir.  R.  8  C.  L.  349  ;  M'Loughlin  v.  Pirger(l), 
Ir.  R.  9  C.  L.  170.)  But  if  the  defendant  contends  that  the  words 
cannot  possibly  be  construed  into  a  libel,  this  is  a  question  for  the 
judge  who  should  then  withdraw  the  case  from  the  jury  ;  and  such 
a  contention  may  rightly  be  stated  as  a  point  of  law.  If  words 
which  are  not  defamatory  are  accompanied  by  an  innuendo  which 
purports  to  give  them  an  actionable  meaning,  the  defendant  should 
first  traverse  the  innuendo  and  may  then  proceed  to  object  "  that 
the  said  words  are  incapable  of  the  meaning  alleged  in  paragraph  2 
of  the  Statement  of  Claim,  or  of  any  other  defamatory  meaning. 
The  said  words  without  the  alleged  meaning  are  no  libel." 

3.  Privilege. 

Formerly  it  was  unnecessary  specially  to  plead  privilege  ;  this 
defence  was  available  under  the  plea  of  Not  Guilty,  as  it  still  is  in 
criminal  cases.  (Lillie  v.  Price,  5  A.  &  E.  645.)  But  since  the 
Judicature  Act  privilege  must  be  specially  pleaded,  and  facts  and 
circumstances  must  also  be  stated  showing  why  and  how  the  occasion 

(483) 


412  PRACTICE    AKD    EVIDENCE. 

is  privileged.  (Ord.  XIX.  r.  18  ;  Spademan  v.  Gibney)  Ex.  D. 
(not  reported)  ;  Simmonds  v.  Dunne,  Ir.  R.  5  C.  L.  358.)  Several 
such  pleas  will  be  found  collected  on  pp.  643-652. 

It  is  necessary  where  the  occasion  is  not  absolutely  privileged  to 
aver  that  the  defendant  acted  bondjide  and  without  malice.  (Smith 
v.  Thomas,  2  Bing.  N.  C.  :i 72.)  Such  an  allegation  is  material  in 
cases  of  absolute  privilege.  If  defendant  avers  that  he  had  just  and 
reasonable  grounds  for  believing  the  charges  against  the  plaintiff  to 
be  true,  he  must  set  forth  what  were  the  grounds  of  such  belief. 
(Fitzgerald  v.  Campbell,  18  Ir.  Jur.  153  ;  15  L.  T.  74.  But  see 
Cave  v.  Torre,  54  L.  T.  515.)  It  is  better,  however,  to  avoid  such 
an  averment  altogether,  and  to  state  that  he  repeated  the  charge 
bondjide  and  in  the  honest  belief  of  its  truth.  An  averment  of  just 
and  reasonable  grounds  runs  dangerously  near  to  a  justification,  and 
the  averment  of  bond  fides  covers  and  includes  it. 

4.  Justification. 

[*  538]  This  is  a  most  dangerous  plea,  and  should  never  be  placed 
on  the  record  without  careful  consideration  of  the  sufficiency  of  the 
evidence  by  which  it  is  to  be  supported  ;  for  the  strictest  proof  is 
required  (see  Leyman  v.  Latimer,  3  Ex.  D.  15,  352  ;  47  L.  J.  Ex. 
470  ;  25  W.  R.  751  ;  26  W.  R.  305  ;  37  L.  T.  360,  819)  ;  and  if  it 
be  not  proved,  the  defendant's  persistence  in  the  charge  is  some 
evidence  of  malice,  and  will  always  tend  to  aggravate  the  damages 
given  against  him.  The  defence  cannot  be  raised  without  a  special 
plea  ;  and  counsel  should  never  draw  such  a  plea  without  express 
instructions,  and  even  then  should  always  caution  the  defendant  as 
to  the  risk  he   runs. 

When  the  libel  consists  of  one  specific  charge,  e.  g.,  "  He  forged  my 
name  to  a  bill  for  £500,"  it  is  sufficient  to  plead  generally  :— "  The 
said  words  are  true  in  substance  and  in  fact."  So  if  the  charge  made 
by  the  defendant  is  : — "  He  stole  his  master's  sheep,"  it  will  be  suf- 
ficient to  allege  that  "  the  plaintiff  did  steal  four  sheep  the  property 
of  his  master,  John  Jones."  But  whenever  a  general  charge  is  made, 
the  very  words  alleged  to  have  been  uttered  must  be  expressly  jus- 
tified (per  Quain,  J.,  in  Restell  &  another  v.  Steward,  Weekly  Notes, 
1875,  p.  249  ;  1  Charley,  89  ;  Bitt.  65  ;  20  Sol.  J.  140  ;  60  L.  T. 
Notes,  123)  ;  and  also  specific  instances  must  be  given,  either  in  the 
plea  or  in  the  particulars.  (Newman  v.  Bailey,  2  Chit.  665  ;  V Anson 
v.  Stuart,  1  T.  R.  748  ;  2  Sm.  L.  Cas.  6th  ed.  57  ;  Holmes  v.  Catesby, 
1  Taunt.  543  ;  HicMnbotham  v.  Leach,  10  M.  &  W.  361.)  And  it  is 
not  sufficient  to  allege  and  prove  one  solitary  instance,  where  the 
words  impute  constant  and  habitual  misconduct.  (  Wakley  v.  Cooke 
&  Ilealey,  4  Ex.  511  ;  19  L.  J.  Ex.  91.)  It  is  enough  to  cite  three 
instances  (Moore  v.  Terrell  and  others,  4  B.  &  Ad.  870  ;  1  N.  &  M. 
559),  and  to  clearly  prove  two.  (R.pros.  Lambri  v.  Labouchere,  14 
Cox,  C.  C.  419.)  'Such  instances  must  be  pleaded  with  sufficient 
particularity  to  inform  the  plaintiff  precisely  what  are  the  facts  to 
be  tried.  It  should  be  alleged  that  they  happened  "  before  the 
publication,  if  any,  o'f  the  said  words,"  and  then  the  plea  may  con- 

(484) 


JUSTIFICATION.  413 

elude,  "wherefore  the  defendant  says  thai  the  said  words  are  true 
in  substance  and  in  fact."  As  a  rule  these  instances  should  be  stated 
in  the  body  of  the  plea,  (lioness  <jb  others  v.  Stubbs,  7  C.  15.  X.  8. 
555  ;  29  L.  J.  C.  P.  220;  0  Jur.  N.  S.  682.)  Bui  if  they  are 
numerous  or  complicated,  they  maybe  given  in  particulars  instead. 
(Behrens  v.  Allen,  8  Jur.  X.  S.  "lis;  3  F.  &  F.  135;  Jones  v. 
Bewicke,  L.  R.  5  C.  P.  32  ;  Gonrley  v.  Plimsoll,  L.  R.  8  < '.  I'. 
362  ;  42  L.  J.  C.  P.  121  ;  21  W.  R.  083;  28  L.  T.  598.  Ami  now 
see  Ord.  XIX.  r.  9.) 

[*5:39]  If  It  appears  from  the  words  set  out  in  the  statement  of 
claim'  that  the  defendant  did  not  make  a  direct  charge  himself, 
but  only  repeated  what  A.  said,  then  a  general  plea  that  the  words 
are  true  will  be  insufficient  (Duncan  v.  Thwaites,  '■>  B.  &  ('.  556)  ; 
for  it  will  only  amount  to  an  assertion  that  A.  said  so  ;  when  as  the 
defendant  must  go  further  and  prove  in  addition  that  what  A.  said 
Mas  true.      (See  ante,  p.  174.) 

The  precise  charge  must  be  justified  ;  and  the  whole  of  the  pre- 
cise charge.  (Goodburne  v.  Bowman  <£'  others,  9  Bing.  532.) 
Every  fact  stated  must  be  proved  true  (  Weaver  v.  Lloyd,  2  B.  &  C. 
678  ;  Helsham.  v.  Blackwood,  11  C.  B.  Ill  ;  20  L.  .J.  (;.  P.  187  ;  15 
Jur.  861),  unless  it  be  absolutely  immaterial  and  trivial,  and  in  no 
way  alters  the  complexion  of  the  affair.  But  not  every  comment 
on  such  facts  need  be  justified.  Thus,  if  the  defendant  states  certain 
facts,  and  then  calls  the  plaintiff  a  "  scamp  "  and  a  "  rascal, v  and 
such  epithets  would  be  deserved  if  the  facts  as  stated  are  true,  then 
it  is  sufficient  to  plead  the  truth  of  the  facts  ;  the  epithets  need  not 
be  expressly  justified.  (Morrison  v.  Harmer,  3  Bing.  N.  C.  767  ;  4 
Scott,  533  ;  3  Hodges,  108  ;  Tighe  v.  Cooper,  7  E.  &  B.  039  ;  26 
L.  J.  Q.  B.  215  ;  3  Jur.  N.  S.  716.)  But  if  the  comment  introduces 
an  independent  fact,  or  substantially  aggravates  the  main  imputa- 
tion, it  must  be  expressly  justified.  Thus  a  libellous  heading  to  a 
newspaper  article  must  be  justified  as  well  as  the  facts  stated  in  the 
article.  (  Bishop  v.  Latimer,  4  L.  T.  775  ;  Clement  v.  Levi*  it- 
others,  3  Br.  &  Bing.  297  ;  3  B.  &  Aid.  702  ;  7  Moore,  200.  See 
ante,  pp.  170-3.) 

But  the  defendant  may  in  mitigation  of  damages  by  a  special  plea 
(Vessey  v.  Pike,  3  C.  &  P.  512)  justify  a  part  of  the  libel,  provided 
such  part  is  distinct  and  severable  from  the  rest.  (See  ante,  p. 
176.)  But  the  plea  must  distinctly  identify  the  portion  justified. 
(See  Precedent,  No.  38.)  Also,  the  defendant  may  deny  that  the 
plaintiff's  innuendo  puts  the  true  construction  on  the  words  and 
assert  that  in  their  natural  and  ordinary  signification  they  are  true. 
But  if  the  defendant  adopts  the  meaning -put  upon  the  words  by 
the  innuendo,  then  he  must  justify  them  in  that  sense,  and  not  in 
any  other.  (  White  v.  Tyrrell  (2),  5  Ir.  C.  L.  R.  498.)  Where  a 
plaintiff  claims  damages  for  a  libel  contained  in  a  letter  set  out  with 
innuendoes,  a  justification  in  the  form  —  "The  statements  in  the  said 
letter  are  true,"  is  a  justification  of  the  libel  itself,  but  not  of  it  as 
read  with  the  innuendo.  (Per  Archibald,  J.,  at  Nisi  Prius,  in 
Payne  v.  Conrthope,  20  Sol.  Journ.  724.)  For  a  plea  of  justification 
under  the  new  system  will  "  not  be  taken  to  intend  a  justification  of 

(485) 


414  FRACTICE    AND    EVIDENCE. 

anything  more  than  it  actually  professes  to  justify."  But  any  plea 
which  wears  a  doubtful  aspect,  which  [*540|  may  be  either  a  justi- 
fication, or  a  mere  traverse,  or  a  plea  of  privilege,  will  be  struck  out 
at  chambers  as  embarrassing.  [Carr  v.  Ducked,  5  II.  &  N.  783  ; 
29  L.  J.  Ex.  468  ;  Brembridge  v.  Latimer,  12  W.  R.  878  ;  10  L.  T. 
816  ;    WKeefe  v.  Cardinal  Cullen,  Ir.  R.  7  C.  L.  319.) 

A  defendant  will  not  be  allowed  to  amend  his  defence  and  plead 
a  justification  at  the  last  moment,  e.  g.,  on  the  day  before  the  trial. 
(Kirby  v.  Simpson,  3  Dowl.  791.) 

5.    Other  Special  Defences. 

Statute  of  Limitations. — The  objection  that  the  action  is  brought 
too  late  must  be  raised  by  a  special  plea  (Ord.  XIX.  r.  15),  even 
though  it  appear  on  the  face  of  the  Statement  of  Claim.  This  was 
decided  as  long  ago  as  1636.     (Haivkings  v.  Billhead,  Cro.  Car.  404.) 

Previous  Action. — That  plaintiff  has  pi'eviously  sued  defendant 
for  the  same  cause  of  action  is  a  defence,  whatever  the  result  of  the 
former  action.  (See  Precedent,  No.  63.)  That  judgment  was 
recovered  against  one  joint  publisher  is  also  a  bar  to  any  action 
against  the  others  for  the  same  publication.  (See  form  of  plea,  2 
C.  &  K.  683,  n.) 

Accord  and  Satisfaction. — That  plaintiff  agreed  to  accept  certain 
apologies  and  that  defendant  duly  published  them  in  accordance 
with  such  agreement  was  held  a  bar  to  the  action  in  Boosey  v. 
Wood,  3  H.  &  C.  484  ;  34  L.  J.  Ex.  65.    See  also  Lane  v.  Applegate, 

I  Stark.  97  ;  and  Jlar/cs  v.  Conservative  Newspaper  Co.,  3  Times 
L.  R.  244. 

As  to  accord  and  satisfaction  made  by  one  jointly  liable  with  the 
defendant  see  Bainbridge  v.  Lax,  9  Q.  B.  819  ;   Thurman  v.   Wild, 

II  A.  &  E.  453  ;  Hey  v.  Moorhouse,  6  Bing.  N.  C.  52.  An  accord 
or  satisfaction  made  by  a  third  party  on  the  defendant's  behalf,  and 
accepted  by  the  plaintiff  in  discharge  will  be  a  bar  to  the  action. 
(Jo)ies  v.  Broadhurst,  9  C.  B.  173.)     See  Precedents,  Nos.  64,  65. 

Release. — A  release  must  be  specially  pleaded.  (Ord.  XIX.  r.  15.) 
In  an  American  case  (Beach  et  ux.  Beach,  2  Hill  (N.  Y.)  260,  ante, 
p.  399),  a  release  by  the  plaintiff's  husband  was  pleaded  to  an  action 
for  slander  of  the  wife. 

Husband  and  Wife. — By  virtue  of  the  Married  Women's  Property 
Act  Amendment  Act,  1874  (37  &  38  Vict.  c.  50),  s.  2,  a  husband, 
when  sued  for  a  libel  or  slander  published  or  uttered  by  his  wife 
before  her  marriage  may,  if  married  between  July  30th,  1874  and 
January  1st,  1883,  in  addition  to  any  other  pleas,  plead  that  no 
property  vested  in  him  by  reason  of  the  marriage  within  the  mean- 
ing of  s.  5,  or  if  a  certain  amount  of  property  did  so  vest  in  him, 
then  that  he  is  liable  [*54l]  to  that  extent  and  no  further.  As  to  a 
husband  married  on  or  since  January  1st,  1883,  see  ante,  pp.  402, 
403. 

Where  a  man  and  woman  sue  as  husband  and  wife  for  defamation 
of  the  woman,  the  defendant  may  plead  that  they  are  not  husband 
and  wife  ;  for   if   so,   the  male    plaintiff    has  no  right  of  action. 

(486) 


APOLOGY.  415 

(Chantler  and  wife  v.  Lindsey,  16  M.  &  W.  82  ;  4  Dowl.  &  Lown- 
des, 339.)     But  now  see  45  &  40  Vict.  C.  75,  S.   1,  ante,  p.  390. 

6.  Payment  into  Court. 

Payment    into  court  is   not  strictly  a  defence  ;  it  is   rather  an 
attempt  at  a  compromise,  practically  admitting  liability  to  a  certain 

extent.  In  all  other  actions  a  defendant  may  pay  money  into  court, 
while  at  the  same  time  he  denies  all  liability.  But  this  is  not 
allowed  in  actions  or  counter-claims  for  libel  or  slander.  (Ord. 
XXII.  r.  1.)  Here  the  defendant  if  he  pays  money  into  court  at  all, 
must  do  so  "by  way  of  satisfaction  which  shall  he  taken  to  admit 
the  claim  or  cause  "of  action  in  respect  of  which  the  payment  is 
made."  Hence  Jones  v.  Mackie,  L.  R.  3  Ex.  1  ;  :;7  L.  J.  Ex.  1  ;  16 
W.  R.  109  ;  17  L.  T.  151,  and  Haickesley  v.  Bradshaw,  (('.  A.)  5 
Q.  B.  D.  302  ;  49  L.  J.  Q.  B.  333  ;  28  W.  R.  557  ;  42  L.  T.  285  are 
no  longer  law  since  October  24th,  1883.  I  should  not,  therefore, 
advise'a  defendant  who  has  any  defence  on  the  merits  to  pay  money 
into  court.  If  he  decides  to  do  so,  he  should  pay  in  a  good  round 
sum;  generally  twiee  as  much  as  the  defendant  himself  thinks  the 
plaintiff  is  entitled  to,  will  be  about  the  right  amount  for  him  to  pay 
into  court,  Generally  it  is  not  worth  while  to  pay  a  farthing  or  a 
shilling  into  court ;  for  it  is  very  improbable  that  plaintiff  will 
accept  that  sum,  and  if  the  jury  do  not  award  more  than  such  con- 
temptuous damages,  the  judge  would  probably  order  the  plaintiff  to 
pay  his  own  costs,  whether  that  amount  had  been  paid  into  court 
or  not. 

It  is  submitted  that  where  the  words  are  defamatory  in  their 
natural  and  obvious  meaning  and  the  plaintiff  by  his  innuendo  puts 
on  them  a  more  defamatory  meaning,  the  defendant  may  traverse 
the  innuendo  and  at  the  same  time  pay  money  into  court  ;  as  such 
a  traverse  is  not  in  that  case  "  a  defence  denying  liability."  (See 
Precedents,  Nos.  66,  68,  69.) 

7.  Apoloyy. 

By  Lord  Campbell's  Libel  Act  (6  &  7  Vict.  c.  96),  s.  2,  in  an 
action  for  a  libel  contained  in  any  public  newspaper  or  periodical 
publication,  the  defendant  may  plead  that  the  libel  was  inserted 
[*  542]  without  actual  malice  and  without  gross  negligence,  and  that 
before  the  commencement  of  the  action,  or  at  the  earliest  opportu- 
nity afterwards,  an  apology  was  published  or  offered,  and  may  pay 
money  into  court  by  way  of  amends.  (For  the  form  of  plea,  see 
Precedent,  No.  72.)'  The  words  in  this  section  enabling  the  defend- 
ant to  pay  money  into  court  were  repealed  in  1879  as  being  unnec- 
essary, the  Rules  of  1875  permitting  payment  into  court  in  every 
action.  But  the  section  2  of  the  8  &  9  Vict.  c.  75,  which  requires 
payment  into  court  as  the  necessary  concomitant  of  such  a  plea  is  not 
repealed.  Money  must  therefore  be  paid  into  court  when  the 
pleading  is  delivered,  if  not  before  ;  otherwise  the  plea  will  be  struck 
out.  And  such  payment  will  operate  as  an  admission  of  liability. 
(Order  XXII.  r.  1.) 

(487) 


416  PRACTICE    AND    EVIDENCE. 

If  therefore  the  proprietor  of  a  newspaper  desires  to  rely  on  this 
section,  he  cannot  set  up  any  other  defence  to  the  action,  though  lie 
may  of  course  deliver  a  notice  under  Order  XXXVI.,  r.  37. 

The  above  section  of  Lord  Campbell's  Act  applies  only  to  public 
periodical  publications  ;  but  s.  1  of  the  same  act  empowers  any 
defendant  to  give  in  evidence  in  mitigation  of  damages  in  any  action, 
whether  of  slander  or  libel,  that  he  made  or  offered  an  apology  to  the 
plaintiff  before  action,  or  at  the  earliest  opportunity  afterwards,  if  he 
had  no  opportunity  before  action.  This  section  distinctly  does  not 
empower  a  defendant  to  plead  an  apology  ;  for  it  requires  him  with 
his  plea  to  give  notice  in  writing  to  the  plaintiff  of  his  intention  to 
give  such  apology  in  evidence.  But  there  can  be  no  objection  now 
to  the  defendant  making  such  written  notice  part  of  his  defence  ; 
indeed  that  he  made  such  an  apology  is  a  material  fact  on  which  he 
relies,  within  the  meaning  of  Order  XIX.  r.  4.  It  is,  I  think,  now 
open  to  a  defendant,  if  he  think  fit,  to  state  in  his  pleading  facts 
which  are  no  defence,  but  which  tend  to  mitigate  the  damages.  It 
can  scarcely  be  said  that  such  a  method  of  pleading  embarrasses  the 
plaintiff,  for  it  gives  him  notice  what  will  be  the  defendant's  case 
at  the  trial.  Indeed  the  decisions  in  Scott  v.  Sampson,  8  Q.  B.  D. 
491  ;  51  L.  J.  Q.  B.  380  ;  30  W.  R.  541  ;  46  L.  T.  412  ;  46  J.  P. 
408  ;  and  MiUington  v.  Loving,  6  Q.  B.  D.  190  ;  50  L.  J.  Q.  B.  214  ; 
29  W.  R.  207  ;  43  L.  T.  657  ;  45  J.  R  268,  if  taken  literally,  imply 
that  a  defendant  must  always  plead  such  facts  in  his  defence^  But 
this  is  not  the  practice,  and  it  may  be  inferred  from  Order  XXXVI. 
r.  37,  that  a  defendant  is  not  bound  to  set  out  in  his  pleading  the 
,facts  on  which  he  proposes  to  rely  in  mitigation  of  damages. 

But  it  is  quite  another  matter  for  the  defendant  in  his  defence  to 
apologize  for  the  first  time,  when  he  had  previous  opportunities,  of 
which  he  did  not  avail  himself.  Still  this  is  sometimes  done  when 
[*  543]  money  is  paid  into  court ;  it  shows  that  the  defendant  has 
taken  his  counsel's  opinion,  and  acted  on  it.  (See  Precedents,  Nos. 
34,  67.)  It  certainly  cannot  embarrass  a  plaintiff  to  have  placed 
upon  the  record  a  full  retractation  of  the,  charge  accompanied  by  an 
expression  of  regret ;  and  it  should  conduce  to  an  amicable  settle- 
ment. But  it  is  certainly  strange  pleading  ;  and  if  the  plaintiff 
wishes  to  have  it  struck  out,  his  application  will  probably  be  suc- 
cessful ;  though  he  can  hardly  afterwards  demand  an  apology  at  the 
trial.  In  cases  within  Order  XXXVI.  r.  37,  the  defendant  should 
deliver  particulars  as  therein  required.  (See  Precedents,  Nos.  67, 
68,  69.) 

8.     Counterclaim. 

It  is  not  often  that  there  is  a  counterclaim  in  an  action  for 
libel  or  slander,  and  it  would  clearly  be  prejudicial  to  the  fair  trial  of 
the  action  to  permit  a  defendant  to  raise  incongruous  issues.  Still 
there  is  no  reason  why  other  libels  or  slanders  published  by  the 
plaintiff  of  the  defendant  should  not  be  made  matter  of  counter- 
claim, and  the  fact  that  they  arise  out  of  a  different  transaction  will 
be  no  ground  for  excluding  them  ( Quin  v.  Hession,  40  L.  T.  70  ;  4 
L.  R.  (Ir.)  35),  if  they  can  be  "  conveniently  disposed  of  in  the  pend- 

(488) 


REPLY. 


417 


ing  action."  In  Nicholson  v.  Jackson,  W.  N.  1876,  p.  38,  where  an 
action  had  been  brought  by  a  director  of  a  company  for  libel,  a 
counterclaim  set  up  by  the  defendant  for  damages  for  less  sustained 
in  respect  of  shares  bought  on  false  representations,  whs  struck  out 
by  Lindley,  .1.  So,  in  Lee  v.  Colyer  ,  W.  N.  1876,  j>.  8  ;  Bitt.  so  ;  i 
Charley,  86  ;  20  Sol.  J.  177  ;  GO  L.  T.  Notes,  157,  Quail),  J.,  struck 
out  a  counterclaim  for  not  repairing  a  house,  the  action  being  for 
assault  and  slander.  And  where  the  writ  was  specially  indorsed  for 
two  quarters'  rent,  the  defendant  was  not  allowed  to  set  up  a  coun- 
terclaim for  libel  and  slander  not  connected  with  the  claim  for  rent. 
(Eotheram  v.  Priest,  49  L.  J.  C.  P.  105  ;  28  W.  R.  277  ;  41  L.  T. 
558.)  But  in  Dobede  v.  Fisher,  at  the  Cambridge  Summer  Assizes, 
1880,  the  late  Lord  Chief  Baron  had  to  try  an  action  of  slander,  in 
in  which  there  was  a  counterclaim  about  a  right  of  shooting  over  the 
land  occupied  by  the  defendant.     ( Times  for  July  29th,  1880.) 

Reply. 

The  plaintiff  on  receiving  the  Defence  should  first  consider 
whether  any  part  of  it  is  such  as  to  entitle  him  to  apply  at  chambers 
for  an  order  to  amend  it,  But  it  does  not  follow  that  he  should  so 
apply  in  every  case  in  which  he  is  entitled  so  to  do.  (See  ante,  533.)  It 
[*544]  is  often  better  policy  to  leave  a  flagrantly  bad  specimen  of 
pleading  unamended,  and  not  to  kindly  strengthen  your  adversary's 
position.  No  party  may  dictate  to  the  other  how  he  shall  plead  ; 
he  must  satisfy  the  master  at  chambers  or  district  registrar  that  the 
passage  to  which  he  objects  is  either  scandalous  (that  is,  both^  offen- 
sive and  at  the  same  time  irrelevant),  or  that  it  tends  to  prejudice, 
embarrass,  or  delay  the  fair  trial  of  the  action.  Then,  it  may  be 
that  his  own  statement  of  claim  may  require  amendment  ;  such 
amendment  now  takes  the  place  of  a  "  new  assignment."  (Order 
XXIII  r.  6.)  Or  the  plaintiff  mav  amend  by  adding  a  new  defend- 
ant, {Edward  v.  Lowther,  45  L.  J.  C.  P.  417  ;  24  W.  R  434  ;  34 
L.  T.  255.)  Next,  if  the  defendant's  pleading  requires  no  amend- 
ment, particulars  may  still  be  demanded.  Thus,  where  the  libel  im- 
puted that  the  plaintiffs  had  infringed  defendant's  patents,  the  de- 
fendant was  ordered  to  deliver  particulars  to  the  plaintiffs,  showing  in 
what  respects  he  alleged  that  the  plaintiffs  had  infringed  his  patents, 
and  giving  references  to  line  and  page  of  his  own  specifications. 
(  Wren  and  another  v.  Weild,  38  L.  J.Q.  B.  88.)  If  no  facts  be  stated 
in  a  plea  of  justification  the  plaintiff  should  apply  for  particulars, 
unless  the  charge  of  itself  be  specific  and  precise  ;  see  ante,  p.  538. 
If  the  facts  stated  are  insufficient  in  law  to  justify  the  imputation, 
the  plaintiff  may  apply  to  have  the  plea  struck  out  or  amended.  So, 
too,  particulars  may  be  obtained  if  a  plea  of  privilege  does  not  state 
the  circumstances  which  render  the  occasion  privileged,  and  on  ob- 
taining such  particulars  plaintiff  may  object,  as  a  matter  of  law, 
thafrthey  disclose  no  privilege. 

A  reply  as  a  rule  is  a  mere  joinder  of  issue  in  actions  of  defama- 
tion, unless  there  be  a  counterclaim.     This  operates   as  a  denial  of 
every  material  allegation  of  fact  in  the  pleading  of  the  other  side, 
27  lib.  &  slan.  (48!)) 


418  PRACTICE    AND    EVIDENCE. 

except  admissions.  (Orel.  XIX.  r.  18.)  To  a  plea  of  absolute  privi- 
lege no  other  reply  is  possible.  (See  Scott  v.  Mansfield,  L.  R.  3  Ex. 
220  ;  37  L.  J.  Ex.*  155  ;  16  W.  R.  911  ;  18  L.  T.  572  ;  Daw/tin* 
v.  Lord  Paulet,  L.  R.  5  Q.  13.  94  ;  39  L.  J.  Q.  B.  53  ;  18  W.  R.  336  ; 
21L.T.  584.) 

To  a  plea  of  qualified  privilege  a  special  reply  is  unnecessary,  if 
malice  be  alleged  in  the  statement  of  claim  or  negatived  in  the  de- 
fence ;  see  ante,  p.  530.  On  a  plea  under  s.  2  of  Lord  Campbell's 
Act,  the  plaintiff  usually  joins  issue  merely,  but  he  may  if  he  likes 
admit  that  the  libel  appeared  in  a  newspaper,  and  that  money  had 
been  paid  into  court  ;  but  deny  that  the  libel  was  inserted  without 
actual  malice  and  without  gross  negligence,  and  that  the  sum  of 
money  paid  into  court  is  sufficient.  (  Chadwick  v.  Ilerapat/i,  3  C. 
B.  885  ;  16  L.  J.  C.  P.  104  ;  4  D.  &  L.  653  ;  Smith  v.  Harrison,  1 
F.  &  F.  565.)  To  a  general  plea  of  payment  into  court  some 
pleaders  reply  specially  that  the  sum  [*545]  paid  in  is  insufficient  ; 
but  a  mere  joinder  of  issue  will  raise  that  point  with  equal  effect. 
To  a  justification  setting  out  a  conviction  or  to  a  plea  of  a  previous 
action,  the  plaintiff  may  reply  specially  Nid  tiel  record  ;  or  if  the  con- 
viction be  erroneously  stated  in  the  defence  (as  in  Alexander  v.  N. 
M  Ry.  Co.,  34  L.  J.  Q.  B.  152  ;  llJur.  N.  S.  619  ;  13  W.  R.  651  ;  6 
B.  &  S.  340,)  the  plaintiff  may  set  it  out  correctly  in  his  reply.  Or 
to  such  a  conviction  the  plaintiff  may  reply  a  pardon  ( Ouddington 
v.  Wilkins,  Hob.  67,  81  ;  2  Hawk.  P.  C.  c.  37,  s.  48),  or  that  he  had 
undergone  his  sentence,  which  will  have  the  same  effect  (Precedent 
No.  39  ;  Leyman  v.  Latimer  and  others,  35  Ex.  D.  15,  352  ;  46  L. 
J.  Ex.  765  ;  47  L.  J.  Ex.  470  ;  25  W.  R.  71  ;  26  W.  R.  305  ;  87 
L.  T.  360,  819  ;  14  Cox,  C.  C.  55)  ;  though  I  apprehend  neither 
reply  would  be  an  answer  if  the  words  complained  of  were  that  the 
plaintiff  "  was  convicted  of  "  a  crime. 

To  a  plea  of  the  Statute  of  Limitations,  plaintiff  may  specially 
reply  absence  beyond  seas  under  statute  of  Anne,  ante,  p.  521. 

Lnter  rogatories. 

Great  care  is  necessary  in  applying  former  decisions  as  to  interrog- 
atories to  the  present  practice.  Before  the  Judicature  Act  special 
leave  was  required  to  administer  interrogatories,  and  the  property 
of  any  interrogatory  proposed  to  be  administered  was  discussed  on 
the  application  for  leave,  which  is  not  the  practice  now.  Then  from 
November  1st,  1875,  to  October  24th,  1883  either  party  delivered 
interrogatories  as  of  right,  subject  only  to  this — that  if  he  exhibited 
interrogatories  unreasonably,  vexatiously,  or  at  improper  length,  he 
might  have  been  ordered  to  pay  the  costs  of  them.  Now,  again, 
leave  is  necessary,  which  will  not  be  granted  except  in  very  excep- 
tional circumstances  before  the  defence  is  delivered;  and  £5  at  least 
must  be  paid  into  Court  for  the  privilege  (Ord.  XXXI.  rr.  1,  26). 
Then  between  November  1st,  1875,  and  November  18th,  1878,  the 
party  interrogated  was  always  allowed  to  apply  at  chambers  to'have 
objectionable  interrogatories  struck  out  ;  this  now,  as  a  rule,  he  may 
not  do  ;  he  merely  refuses  to  answer  them  in  his  affidavit  in  answer. 
(See  2>ost,  p.  550.) 

(490) 


INTERROGATORIES.  419 

In  actions  of  slander,  too,  the  courts  formerly  felt  a  great  reluc- 
tance in  allowing  any  interrogatories  at  all  to  be  administered. 
(Stern  v.  Sevastopulo,  14  C.  B.  N.  S.  737  ;  32  L.  J.  C.  P.  208).  In 
fact,  there  is  only  one  instance  reported  of  such  interrogatories 
being  allowed  before  the  Judicature  Act,  and  in  that  case  (Atkinson 
v.  Fosbroke,  L.  R.  1  Q.  B.  628  ;  35  L.  J.  Q.  B.  182  ;  12  Jur.  N.  S. 
810  ;  14  W.  R.  [*540]  832  ;  14  L.  T.  553)  the  plaintiff  had  exhausted 
every  other  channel  of  inquiry,  and  was  unable  to  discover  what 
were  the  exact  words  the  defendant  had  uttered.  Formerly,  also, 
the  court  was  reluctant  in  actions  both  of  libel  and  slander  to  assist 
the  defendant  in  obtaining  evidence  in  support  of  his  plea  of  justifi- 
cation, on  the  ground  that  he  ought  not  to  have  taken  away  the 
character  of  the  plaintiff,  unless  he  was  in  a  position  to  prove  the 
truth  of  the  charge  he  made.  (Metropolitan  Saloon  Omnibus  Co.y. 
Hawkins,  4  H.  &  N.  87,  146;  28  L.  J.  Ex.  201  ;  7  W.  R.  265  ;  32 
L.  T.  (Old  S.)  281  ;  5  Jur.  N.  S.  226.)  But  this  reluctance  has 
entirely  disappeared  (see  Marriott  v.  Chamberlain,  (C.A.)  17  Q.B.D. 
154  ;  5*5  L.  J.  Q.  B.  448;  34  W.  R.  783  ;  54  L.  T.  714),  and  both 
defendant  and  plaintiff  now  deliver  and  answer  interrogatories  as  in 
any  other  action. 

The  object  of  interrogating  is  twofold  ;  first,  to  obtain  admissions 
to  facilitate  the  proof  of  your  own  case";  secondly,  to  ascertain  so 
far  as  possible  the  case  of  your  opponent.  There  is  therefore  some 
art  required  in  drawing  interrogatories.  Think  rather  of  the  answer 
defendant  will  probably  give  you  than  of  the  answer  which  you  are 
instructed  he  ought  to  give  to  the  question  you  are  putting.  The 
defendant's  version  of  the  matter  must  differ  from  the  plaintiff's 
version,  and  your  object  is  to  discover  precisely  where  and  to  what 
extent  they  differ.  The  question  then  should  be  framed  so  as,  in 
the  first  place,  to  elicit  if  possible  the  admission  you  desire:  and  at 
the  same  time,  failing  that  answer,  to  get,  at  all  events,  some  definite 
statement  sworn  to,  from  which  the  party  interrogated  cannot  after- 
wards diverge.  Leave  him  no  loophole  of  escape.  If  he  will  not 
answer  the  question  your  way,  still  at  least  find  out  how  far  he  is 
prepared  to  go  in  the  opposite  direction.  To  secure  this  it  is  well  to 
ask  a  long  series  of  short  questions,  not  one  long  question.  Each 
additional  detail  should  be  put  in  a  question  by  itself.  But  there 
are  certain  rules  which  determine  what  interrogatories  may  be 
administered  and  what  not  : 

1.  Interrogatories  must  be  relevant  to  the  matters  in  issue.  Not 
every  question  which  could  be  asked  a  witness  in  the  box  may  be 
put  as  an  interrogatory.  (Per  Martin,  B.,  mPeppiatt  and  wife  v.  Smith, 
33  L.  J.  Ex.  240  ;  and  see  the  concluding  words  of  Ord.  XXXI.  r.  1.) 
Thus,  questions  to  credit  only  will  not  be  allowed,  although  of  course, 
they  maj''  be  asked  the  party  in  cross-examination.  (Baker  v.  Newton, 
Weeklv  Notes,  1876,  p.  8  ;  1  Charley,  107;  Bitt,  80;  20  Sol.  J.  177.; 
60  L.  T.  Notes,  157;  Allhusenv.  Zabouchere,  (C.A.)  3  Q.  B.  D.  654; 
47  L.  J.  Ch.  819;  27  W.  R.  12;  39  L.  T.  207.)  "  We  have  never 
allowed  interrogatories  merely  as  to  the  credibility  of  a  party  as  a 
witness."  (Per  Cockburn,  C.  J.,  in  Labouchere  v.  Shaw, 41  J.  P.  788^) 
[*547]  Again,  no  question  need  be  answered  which  is  not  put  bond 

(491) 


420  PRACTICE    AND    EVIDENCE. 

fide  for  the  purposes  of  the  present  action.  Tims,  the  publisher  of 
a  newspaper  must  answer  the  interrogatory  :  "  Was  not  the  pas- 
sage set  out  in  paragraph  3  of  the  Statement  of  Claim  intended  to 
apply  to  the  plaintiff  ?  "  ;  but  he  need  not  answer  the  further  ques- 
tion, "  If  not,  say  to  whom  ?  "  as,  if  the  passage  did  not  apply  to 
the  plaintiff,  it  is  immaterial  to  whom  it  referred,  so  far  as  the 
plaintiff's  action  is  concerned.  (  Wilton  v.  Brignell,  Weekly  Notes, 
1875,  p.  239  ;  1  Charley,  105  ;  Bitt.  56  ;  20  Sol.  J.  121  ;  GO  L.  T. 
Notes,  104.)  So  defendant  cannot  be  asked,  "If  you  did  not  print 
the  libel,  did  M'C.  &  Co.  or  some  other  and  what  firm  print  it  ?  " 
(Pankhurst  v.  Wighton  &  Co.,  2  Times  L.  745.)  Interrogatories 
asking  plaintiff  whether  similar  charges  had  not  been  made  against 
him  previously  in  a  newspaper,  and  whether  he  had  contradicted 
them  or  taken  any  notice  of  them  on  that  occasion,  are  clearly 
irrelevant.  (Pankhurst  v.  Hamilton,  2  Times  L.  R.  682.)  So, 
too,  interrogatories  were  disallowed  which  asked  the  plaintiff  for 
particulars  of  sums  already  recovered  by  him  in  other  actions  in 
respect  of  other  publications  of  the  same  libel.  ( Tucker  v.  Law- 
son,  2  Times  L.  R.  593.) 

But  interrogatories  are  not,  like  pleadings,  confined  to  the  facts 
on  which  the  parties  intend  to  rely  ;  they  should  be,  and  generally 
are,  directed  to  the  evidence  by  which  they  intend  to  establish  such 
facts  at,  the  trial.  Either  party  may  interrogate  as  to  any  link  in 
the  chain  of  evidence  necessary  to  substantiate  his  case  ;  the  ques- 
tion is  relevant  as  leading  up  to  a  matter  in  issue  in  the  action. 
Thus,  if  the  defendant  denies  that  he  wrote  the  libel,  he  may  be 
asked  whether  other  documents  produced  to  him  are  not  in  his 
handwriting,  though  such  other  documents  have  nothing  to  do  with 
the  case  but  will  only  be  used  for  comparison  with  the  libel. 
{Jones  v.  Richards,  15  Q.  B.  D.  439.)  So,  too,  a  defendant  may 
interrogate  as  to  any  fact  material  to  his  case  upon  the  issue  on  a 
plea  of  justification.  {Marriott  v.  Chamberlain,  (C.  A.)  17  Q.  B. 
D.  154  ;  55  L.  J.  Q.  B.  448  ;  34  W.  R.  783  ;  54  L.  T.  714.)  So  if 
the  occasion  be  privileged  either  party  may  interrogate  the  other 
with  a  view  of  proving  or  disproving  malice.  ( Cooper  v.  Black- 
more  and  others,  2  Times  L.  R  746.)  It  was  always  permissible  to 
interrogate  as  to  matters  of  reply.  Davis  v.  Gray  (30  L.  T.  418), 
if  rightly  reported,  is  and  was  bad  law. 

2.  The  party  interrogating  may  put  his  whole  case  to  his  oppo- 
nent if  he  thinks  fit,  though  it  is  not  always  wise  to  do  so  ;  he  may 
also  interrogate  in  full  detail  as  to  matters  common  to  the  case  of 
both  parties  ;  but  he  is  not  entitled  to  obtain  more  than  an  outline 
of  his  oppo  [*548]  nent's  case.  You  can  compel  your  adversary  to 
disclose  the  facts  on  which  he  intends  to  rely,  but  not  the  evidence 
by  which  he  proposes  to  prove  those  facts.  You  cannot  claim  to 
"  see  his  brief  "  or  ask  him  to  name  the  witnesses  he  means  to  call 
at  the  trial.  You  may  not  ask  in  whose  presence  such  and  such 
events  occurred  ;  but  you  are  entitled  to  know  precisely  what  is  the 
charge  made  against  you,  and  what  is  the  case  you  have  to  meet. 
(Eade  and  another  v.  Jacobs,  (C.  A.)  3  Ex.  D.  335  ;  47  L.  J.  Ex. 
74  ;  26  W.  R.  159  ;  37  L.  T.  621  ;  Johns  v.  James,  13  Ch.  D.  370; 

(492) 


INTERROGATORIES.  421 

Ashley  v.  Taylor,  37  L.  T.  522  ;  (C.  A.)  38  L.  T.  44.)  And  it  is 
no  objection  that  the  same  information  might  have  been  obtained 
by  particulars.  In  Gay  v.  Labouchere  (4  Q.  B.  D.  200  ;  4S  L.  J. 
Q.  15.  27!)  ;  -27  W.  R.  412),  Cockburn,  C.  .1.,  asks,  "  Why  should 
not  the  plaintiff  have  this  information  by  means  of  interrogatories 
as  well  as  by  particulars?"  Indeed,  there  is  nothing  to  prevent  a 
defendant's  applying  first  for  particulars  and  then  interrogating 
the  plaintiff  as  to  those  particulars  afterwards.  But  a  master  at 
chambers  has  refused  to  order  a  defendant  to  answer  interrogato- 
ries as  to  the  details  of  matters  which  were  mentioned  only  in  a 
notice  under  Order  XXXVI.  r.  37. 

3.  But  even  in  interrogating  as  to  your  own  case,  the  questions 
asked  must  not  be  "fishing;"  that  is,  they  must  refer  to  some 
definite  and  existing  state  of  circumstances,  not  be  put  merely  in 
the  hopes  of  discovering  something  which  may  help  the  party  in- 
terrogating to  make  out  some  case.  They  must  be  confined  to 
matters  which  there  is  good  ground  for  believing  to  have  occurred. 
Thus,  where  the  libel  charged  the  plaintiff  with  having  used  certain 
blasphemous  phrases,  interrogatories  were  disallowed  as  "  fishing," 
the  object  of  which  was  to  show  that  if  plaintiff  had  not  said  what 
he  was  charged  with  saying,  still  he  had  said  something  very  much 
like  it.  (Pankhurst  \.  Hamilton,  2  Times L.  R.  682.)  "Fishing" 
interrogatories  are  especially  objectionable  when  their  object  is  to 
get  at  something  which  may  support  a  plea  of  justification.  ( Gour- 
ley  v.  Plimsoll,  L.  R.  8  C.  P.  362  ;  42  L.  J.  C.  P.  121  ;  21  W.  R.  683  ; 
28  L.  T.  598;  Buchanan  v.  Taylor,  Weekly  Notes  for  1876,  p.  73  ; 
Bitt.  131  ;   20  Sol.  J.  298  ;   60  L.  T.  Notes,  268.) 

4.  In  the  Queen's  Bench  Division,  at  all  events,  interrogatories 
are  not  allowed  as  to  the  contents  of  written  documents,  unless  it  is 
admitted  that  such  documents  have  been  lost  or  destroyed.  (Stein 
v.  Tabor,  31  L.  T.  444  ;  Mtzgibbon  v.  Greer,  Ir.  R.  9  C.  L.  294.) 
Nor  will  interrogatories  be  allowed,  the  object  of  which  is  to  con- 
tradict a  written  document.  (Moor  v.  Roberts,  3  C.  B.  N  S.  671  ; 
26  L.  J.  C.  P.  246.)  But  you  may  ask  what  has  become  of  a  par- 
ticular document,  and  continue  :  "  If  you  state  that  such  document 
is  lost  or  destroyed,  [*549]  set  out  the  contents  of  the  same  to  the 
best  of  your  recollection  and  belief.  If  you  have  a  copy  make  it 
an  exhibit  to  your  answer."  (See  Wolverhampton  New  Water- 
works Co.  v.  Ilawksford,  5  C.  B.  N.  S.  703  ;  28  L.  J.  C.  P.  198  ; 
Dairy mple  v.  Leslie,  8  Q.  B.  D.  5  ;  51  L.  J.  Q.  B.  61  ;  30  W.  R. 
105  ;'  45  L.  T.  478.) 

5.  Questions  which  tend  to  criminate  may  certainly  be  asked, 
unless  they  are  either  irrelevant  or  "  fishing,"  though  the  party 
interrogated  is  not  bound  to  answrer  them  (post,  p.  551).  That  the 
interrogatories  will  tend  to  criminate  others  is  no  objection,  if  they 
be  put  bond  fide  for  the  purposes  of  the  present  action.  (J/'  Cor- 
quodale  v.  Bell  and  another,  W.  N.  1877,  p.  39  ;  Bitt.  Ill  ;  20  Sol. 
J.  260  ;  60  L.  T.  Notes,  232.)  That  to  answer  them  would  expose 
the  party  interrogated,  or  third  persons,  to  civil  actions,  was  never 
an  objection.     (Tetley  v.  JEaston,  25  L.  J.  C.  P.  293.) 

(493) 


422  PRACTICE    AND    EVIDENCE. 

Setting    aside    Interrogatories. 

Interrogatories  cannot  now  be  set  aside,  unless  they  are,  as  a 
whole,  "exhibited  unreasonably  or  vexatiously,"  or  unless  any  one 
or  more  of  them  is  or  are  "  scandalous."  (Ord.  XXXI.  r.  7  ;  Gay 
V.  Labouchere,  4  Q.  B.  D.  206  ;  48  L.  J.  Q.  B.  279  ;  27  W.  R.  413.) 
Any  objection  to  particular  interrogatories,  or  portions  of  inter- 
rogatories, on  the  ground  that  they  are  irrelevant,  or  "  fishing," 
&c,  &c,  must  be  taken  in  the  affidavit  in  answer,  and  is  no 
ground  for  an  application  to  set  the  interrogatories  aside.  And 
both  the  phrases  "unreasonable  or  vexatious"  and  "scanda- 
lous" have  special  meanings.  Masters  at  chambers,  follow- 
ing the  dictum  of  Pollock,  B.,  Gay  v.  Labouchere  (4  Q.  B. 
D.  207),  construe  "  unreasonable  or  vexatious  "  as  referring  to  the 
time  or  stage  in  the  cause  at  which  they  are  exhibited  ;  in  short, 
that  they  are  "  premature."  (See  Mercier  v.  Cotton,  1  Q.  B.  D. 
442  ;  46  L.  J.  Q.  B.  184  ;  24  W.  R  566  ;  35  L.  T.  79.)  A  "scan- 
dalous" interrogatory  may  be  defined  as  an  insulting  or  degrading 
question,  which  is  irrelevant  or  impertinent  to  the  matters  in  issue. 
"Certainly  nothing  can  be  scandalous  which  is  relevant."  (Per 
Cotton,  L.J. ,  in  Fisher  v.  Owen,  8  Ch.  D.  653.)  Questions  which 
tend  to  criminate  are  not  scandalous,  unless  they  are  either  irrele- 
vant or  "fishing"  (Allhusen  v.  Labouchere,  3  Q.  B.  D.  654  ;  47  L. 
J.  Ch.  819  ;  27  W.  R.  12  ;  39  L.  T.  207),  and  will  not,  therefore, 
be  struck  out  or  set  aside  ;  the  party  interrogated  must  take  the 
objection  on  oath  in  his  answer.  The  only  case  to  the  contrary 
since  the  Judicature  Act  came  into  operation  (Atherley  v.  Harvey,  2 
Q.  B.  D.  524  ;  46  L.  J.  Q.  B.  518  ;  25  W.  R.  727  ;  36  L.  T.  551) 
was  decided  under  a  mis  [*  550]  apprehension  of  the  previous 
practice  in  Equity,  as  has  been  frequently  pointed  out  by  learned 
judges,  and  is  admittedly  bad  law.  (See  the  remarks  of  Cotton,  L. 
J.,  at  8  Ch.  D.  p.  654.) 

And  even  where  the  party  might  have  applied  to  have  the  inter- 
rogatory struck  out,  he  may  still  take  the  same  objection  in  his 
answer.  (Fisher  v.  Owen,  8  Ch.  D.  645  ;  47  L.J.  Ch.  477,  681  ;  26 
W.  R.  417,  581  ;  38  L.  T.  252,  577.)  He  waives  nothing  by  not 
applying  ;  hence  applications  to  strike  out  particular  interrogatories 
are  now  rarely  made. 

Answers  to   Interrogatories. 

The  answers  must  be  carefully  drawn.  It  is  quite  admissible  to 
answer  "  Yes  "  or  "  No  "  simply,  so  long  as  it  is  clear  how  much  is 
thus  admitted  or  denied.  So,  too,  it  is  quite  admissible  to  say,  "  I 
do  not  know,"  where  the  matter  is  clearly  not  within  the  deponent's 
own  knowledge  or  that  of  his  servants.  He  is  not  bound  to  procure 
information  from  others  for  the  purpose  of  answering.  (Per  Brett, 
J.,  in  Phillips  v.  Houth,  L.  R.  7  C.  P.  287  ;  Held  v.  Bennett,  2 
Times  L.  R.  91,  122.)  The  party  interrogated  may  answer  guard- 
edly, and  make  qualified  admissions  only,  so  long  as  both  the 
admission  and  the  qualification  are  clear  and  definite.  (Malone 
v.  Fitzgerald,  18  L.  R.  Ir.  187.) 

(.494) 


ANSWERS    TO    INTERROGATORIES.  423 

Objections  under  Ord.  XXXI.  r.  6  are  usually  taken  in  the  follow- 
ing form.  It  is  safer  in  every  case  to  expressly  take  such  objec- 
tions in  the  answer,  though  it  is  not  always  essential  so  to  <lo. 
(Church  v.  Perry,  36  L.  T.  513  ;  Smith  v.  Berg,  25  W.  R.  606  ;  30 
L.  T.  471.) 

1.  "  I  object  to  answer  the  9th  and  10th  interrogatories  on  the 
ground  that  they  are  irrelevant  and  are  not  put  bond  fide,  for  the 
purposes  of  this  action." 

2.  "  I  object  to  state  the  evidence  by  which  I  intend  to  establish 
the  facts  set  out  in  paragraphs  4,  5,  6  of  my  Defence."  "  I  object 
to  name  my  witnesses."  (But  see  Marriott  v.  Chamberlain,  (C.  A.) 
17  Q.  B.  D.  154  ;  55  L.  J.  Q.  B.  448  ;  34  W.  K.  783  ;  54  L.  T. 
714.) 

3.  "  I  object  to  answer  the  5th  interrogatory  on  the  ground  that 
it  is  a  fishing  interrogatory,  put  for  the  purpose  of  making  out 
some  case  under  the  defendant's  plea  of  justification." 

4.  "  I  object  to  state  the  contents  of  a  written  document  ;  "  or 
"  The  said  document  when  produced  will  be  the  best  evidence  of 
its  own  contents."  The  following  answer  was  held  sufficient  in 
Dairy mple  v.  Leslie  (8  Q.  B.  D.  5  ;  51  L.  J.  Q.  B.  01  ;  30  W.  R.  105  ; 
45  L.  T.  478)  :  "  I  keep  no  copy  and  have  no  copy  of  the  said 
letter,  and  I  am  unable  to  recollect  with  exactness  what  the  state- 
ments contained  therein  were." 

[*  551]  5.  If  the  person  interrogated  be  a  solicitor,  it  is  a  suffi- 
cient answer  to  state  "  I  have  no  personal  knowledge  of  the  matters 
referred  to  in  this  interrogatory,  and  the  only  information  and  belief 
that  I  have  received  or  have  respecting  any  such  matters  has  been 
derived  from  and  is  founded  on  information  of  a  confidential  char- 
acter procured  by  me  as  a  solicitor  of  the  said  C,  and  not  other- 
wise, for  the  purpose  of  litigation  between  the  plaintiff  and  the  said 
C,  either  pending  or  threatened  by  the  •  plaintiff.  I  claim  to  be 
privileged  from  answering  this  interrogatory  further."  (Proctor  v. 
Smiles,  55  L.  J.  Q.  B.  467,  527.)  Similarly,  a  client  may  refuse  to 
disclose  information  which  he  only  obtained  from  his  solicitor  since 
action  and  which  was  the  result  of  inquiries  instituted  by  the  solici- 
tor for  the  purpose  of  the  litigation.  (Proctor  v.  Raiks  and  another, 
3  Times  L.  R.  229.) 

6.  "  In  answer  to  the  5th  interrogatory,  I  say  that  to  answer  the 
said  interrogatory  would  tend  to  criminate  me  ;  wdierefore  I  respect- 
fully decline  to  answer  the  same  ;  "  or,  "  wherefore  I  humbly  sub- 
mit that  I  am  not  bound  to  make  any  further  or  other  answer  to  the 
same."  This  objection  must  be  stated  in  clear  and  unequivocal 
language.  (See  Bedford  v.  Colt  (not  reported),  post,  p.  660.)  In 
Lamb\.  Munster  (10  Q.  B.  D.  110  ;  52  L.  J.  Q.  15.  46  ;  31  W.  R. 
117  ;  47  L.  T.  442),  it  was  held  sufficient  for  the  defendant  to  state 
on  oath,  "I  decline  to  answer  all  the  interrogatories  upon  the 
ground  that  my  answer  to  them  might  tend  to  criminate  me." 
(And  see  Jones  v.  Richards,  15  Q.  B.  D.  439.) 

To  publish  a  libel  is  a  crime.  Hence  to  ask  whether  the  defend- 
ant had  any  share  in  writing,  printing  or  composing  the  alleged 
libel,  or  was  the  editor  of  the  newspaper  at  the  date  of  publication, 

(495) 


424  PRACTICE    AND    EVIDENCE. 

lias  a  direct  tendency  to  criminate  him  ;  and  he  may  therefore 
refuse  to  answer  such  questions,  although  there  is  not  the  faintest 
prospect  in  reality  of  any  criminal  proceedings  being  taken  against 
him.  And  this  answer  (except  in  one  case)  is  conclusive  ;  it  is  idle 
for  the  party  interrogating  to  argue  that  he  does  not  see  how  the 
question  can  possibly  criminate  the  deponent,  if  the  deponent  swears 
positively  it  will. 

But  by  statute  an  exception  has  been  created.  Section  19  of  the 
6  &  7  Will.  IV.  c.  76  was  re-enacted  by  the  32  &  33  Vict.  c.  24, 
sched.  2,  while  other  sections  were  repealed  by  sched.  1.  It  there- 
fore remains  in  force,  although  subsequently  the  whole  original  act 
was  repealed  by  the  33  &  34  Vict.  c.  99.  It  runs  as  follows  :  "  If 
any  person  shall  file  any  bill  in  any  court  for  the  discovery  of  the 
name  of  any  person  concerned  as  printer,  publisher,  or  proprietor  of 
any  newspaper,  or  of  any  matters  relative  to  the  printing  or  pub- 
lishing [*  552  |  of  any  newspaper,  in  order  the  more  effectually  to 
bring  or  carry  on  any  suit  or  action  for  damages  alleged  to  have 
been  sustained  by  reason  of  any  slanderous  or  libellous  matter  con- 
tained in  any  such  newspaper  respecting  such  person,  it  shall  not  be 
lawful  for  the  defendant  to  plead  or  demur  to  such  bill,  but  such 
defendant  shall  be  compellable  to  make  the  discovery  required  ;  pro- 
vided always,  that  such  discovery  shall  not  be  made  use  of  as  evi- 
dence or  otherwise  in  any  way  proceeding  against  the  defendant, 
save  only'  in  that  proceeding  for  which  the  discovery  is  made." 
Before  the  Judicature  Act  it  was  held  that  this  section  was  confined 
to  a  bill  for  discovery  in  Equity,  and  was  not  incorporated  by  the 
C.  L.  P.  Act,  1854,  so  as  to  apply  to  interrogatories  at  Common 
Law.  It  followed  that  if  the  defendant  answered  such  interrogato- 
ries, his  answers  could  have  been  used  against  him  in  a  criminal 
proceeding.  The  court  therefore  refused  to  order  the  defendant  to 
give  the  required  information,  he  having  objected  on  oath  to  an- 
swer the  interrogatories,  and  this  although  by  going  into  Equity  the 
plaintiff  could  have  compelled  the  defendant  to  answer.  (Bowden 
v.  Allen,  39  L.  J.  C.  P.  217  ;   18  W.  R.  695  ;   22  L.  T.  342.) 

Hence  a  plaintiff  was  compelled  to  file  a  bill  for  discovery  in 
Equity  to  obtain  this  information,  a  cumbrous  and  expensive  pro- 
ceeding. There  is  only  one  instance  reported  in  which  a  plaintiff 
availed  himself  of  the  privilege.  {Dixon  v.  Enoch,  L.  R.  13  Eq. 
394  ;  41  L.  J.  Ch.  231  ;  20  W.  R.  359  ;  26  L.  T.  127.)  But  directly 
the  Judicature  Act  came  into  operation,  every  Division  of  the  High 
Court  of  Justice  was  empowered  to  grant  all  equitable  remedies, 
and  to  exercise  all  powers  formerly  possessed  by  the  Court  of  Chan- 
cery, with  the  especial  object  of  avoiding  all  circuity  and  multi- 
plicity of  legal  proceedings.  Hence,  as  early  as  November  7th, 
1875," Lush,  J.,  in  Bamsden  v.  Brearley  (33  'L.  T.  322  ;  Weekly 
Notes,'l875,  p.  199  ;  1  Charley,  96  ;  Bi'tt.  Addenda  ;  20  Sol.  J.  30), 
decided  that  the  following  interrogatory  Avas  allowable,  and  could 
not  be  struck  out  : — "  Were  you,  on  the  22nd  of  November,  1«74, 
the  printer  or  publisher,  or  both,  of  the  /Standard  newspaper?" 
And  his  lordship  decided  that  the  protection  accorded  by  the  con- 
cluding proviso  of  sect.  19  of  6  &  7  Will.  IV.  c.  76,  would  attach  to 

(496) 


DISCOVERY    OF    DOCUMENTS.  425 

the  defendant's  answers,  so  that  they  could  not  be  used  against  him 
in  any  other  proceeding.  To  answer  such  an  interrogatory  can  not 
therefore  tend  to  criminate  the  defendant.  This  decision  was  fol- 
lowed by  Archibald,  J.,  in  Carter  v.  Leeds  Daily  News  Co.  and 
Jackson,  Weekly  Notes,  L876,  p.  11  ;  1  Charley,  10]  ;  Bitt.  9]  ;  20 
Sol.  J.  218  ;  60  L.  T.  Notes,  196,  post,  p.  659,  Precedent,  No.  74. 

[*553]  So,  too,  in  Lefroy  v.  Burnsiae  (4  L.  R.  Ir.  340  ;  41  L.  T. 
199  ;  14  Cox,  C.  C.  260),  the  defendant  in  an  action  for  libel,  the 
alleged  proprietor  of  a  newspaper,  was  served  with  interrogatories 
by  the  plaintiff  inquiring,  inter  alia,  whether  he  was  not  such  pro- 
prietor. This  interrogatory  the  defendant  in  his  answer  declined 
to  answer,  on  the  ground  that  it  might  tend  to  criminate  him  in  cer- 
tain criminal  proceedings  which  had  been  commenced  against  him 
by  the  same  plaintiff,  and  were  then  actually  pending.  On  summons 
by  the  plaintiff  to  compel  further  answer  to  this  interrogatory,  the 
Exchequer  Division  in  Ireland  held  that  it  must  be  answered  ;  inas- 
much as  sect.  19  of  the  6  &  7  Will.  IV.  c.  76,  was  still  in  force,  and 
was  by  sect.  24,  sub-s.  7,  of  the  Judicature  Act,  1873,  made  enforce- 
able by  interrogatories  in  an  action"  in  the  Queen's  Bench  Division. 
(See  pout,  p.  659.) 

But  it  must  be  remembered  that  sect.  19  of  6  &  7  Will.  IV.  c.  76, 
applies  only  to  the  "  printer,  publisher,  or  proprietor  "  of  a  newspaper. 
A  defendant  may  therefore  object,  on  the  ground  of  criminality,  to 
answer  any  interrogatory  asking  whether  he  is  the  editor  of  the  paper 
(  Carter  v.  Leeds  Dally  News  and  Jackson,  supra),  or  whether  lie  is 
the  author  of  the  alleged  libel.  (  Wilton  v.  Brignell,  Weekly  Notes, 
1875,  p.  239  ;  1  Charley,  105  ;  Bitt.  56  ;  20  Sol.  J.  121  ;  60  L.  T. 
Notes,  104.  And  see  JSP Loaghlin  v.  Uwyer  [\),  Ir.  R.  9  C.  L.  170.) 

.This  point  is  still  one  of  practical  importance  ;  for  though  the 
Newspaper  Libel  and  Registration  Act,  1881,  compels  the  printer  of 
every  newspaper  to  make  an  annual  return  {ante,  p.  388),  still  it 
is  possible  that  since  the  last  return  the  defendant  may  have  trans- 
ferred all  his  interest  in  the  paper  to  some  one  else  before  the  libel 
appeared  ;  and  this  it  is  open  to  him  to  prove  at  the  trial,  and  if 
proved  it  will  be  a  good  defence.  It  is  not  therefore  safe  to  wholly 
rely  on  a  certificate  under  that  act  where  the  defendant  denies  on 
the  pleadings  that  he  was  proprietor  of  the  paper  at  the  date  of  the 
libel. 

Where  the  plaintiff,  who  had  sued  the  publisher  of  a  newspaper, 
administered  interrogatories  and  thereby  ascertained,  for  the  first 
time  after  issue  joined,  the  name  of  the  proprietor  of  the  paper,  he 
was  allowed  to  join  the  latter  as  a  co-defendant  with  the  publisher 
under  Order  XVI.  r.  4.  {Edward  v.  Loiother,  45  L.  J.  C.  P.  417  ; 
24  W.  R.  434  ;  34  L.  T.  255.) 

Discovery  of  Documents. 

As  a  rule,  neither  party  can  obtain  discovery  or  inspection  of 
documents  before  the  defence  has  been  delivered.  (British  and 
Foreign  Contract  Co.  v.  Wright,  32  W.  R.  413.)  The  Courts  of 
Common    f*554j    Law    used  formerly,   when  discovery  was   only 

(497)   ' 


426  PRACTICE    AND    EVIDENCE. 

granted  as  a  favour,  to  refuse  to  assist  a  defendant  to  obtain  evi- 
dence in  support  of  a  plea  of  justification,  on  the  ground  that  he 
should  not  have  pul  lished  the  charge  till  he  was  in  a  position  to 
prove  its  truth.  Thus,  where  a  shareholder  in  a  joint  stock  company 
published  and  justified  a  libel  imputing  insolvency  to  the  company, 
he  was  held  to' be  not  entitled  to  inspect  the  books  of  the  company. 
{Metropolitan  Saloon  Omnibus  Co.  v.  Hawkins,  4  IT.  <fcN.  87,  146  ; 
28  L.  J.  Ex.  201  ;  5  Jur.  N.  S.  226  ;  7  W.  R.  265  ;  32  L.  T.  (Old  S.) 
281.)  But  in  equity  it  appears  that  a  defendant,  in  an  action  of 
libel,  was  allowed  precisely  the  same  discovery  as  a  defendant  in 
any  'other  suit,  and  that  although  he  had  pleaded  a  justification. 
(Per  Sir  John  Leach,  V.-C,  in  Thorpe  v.  Macaulay,  5  Madd.  230  ; 
and  see  Hare  on  Discovery,  p.  116.)  And  now  the  Chancery  rules 
govern  discovery  in  all  Divisions.  (Anderson  v.  Bank  of  British 
Columbia,  (C.  A.)  2  Ch.  D.  644  ;  45  L.  J.  Ch.  449  ;  24  W.  R.  724  ; 
35  L.  T.  76.)  But  it  may  still  be  questioned  whether  such  discovery 
should  be  allowed  till  after  full  particulars  of  such  justification  have 
been  delivered.  A  plaintiff  was  always  allowed  discovery  and  inspec- 
tion of  all  documents  in  the  possession  of  the  defendant  which  would 
help  him  to  rebut  the  justification.  (  Collins  v.  Yates  and  another, 
27  L.  J.  Ex.  150.) 

In  a  proper  case  (as  when  the  chief  question  in  dispute  is,  In  whose 
handwriting  is  the  libel  ?),  the  master  will  order  the  party  in  posses- 
sion of  the  libel  to  permit  his  opponent  to  take  photographic  or 
facsimile  copies  thereof,  of  course  at  his  own  expense.  (Davey  v. 
Pemberton,  11  C.  B.  N.  S.  628.) 

That  letters  are  privileged  in  the  special  sense  in  which  that  term 
is  used  in  actions  of  defamation  {i.e.,  that  the  occasion  on  which  they 
were  written  renders  them  not  actionable  unless  the  plaintiff  can 
prove  malice)  is  no  ground  for  refusing  to  produce  them  :  they  are 
not  privileged  from  inspection.  (  Webb  v.  East,  (C.  A.)  5  Ex.  D. 
23,  108  ;  49  L.  J.  Ex.  250  ;  28  W.  R.  229,  336  ;  41  L.  T.  715.)  It  is, 
however,  a  ground  of  privilege  that  the  documents,  if  produced,would 
tend  to  criminate  the  party  producing  them.  But  this  objection  (as 
in  the  case  of  interrogatories)  can  only  be  taken  by  the  party  himself 
and  on  oath.  Thus,  in  an  action  to  recover  damages  for  a  libel, 
alleged  by  the  plaintiff  to  be  contained  in  two  letters  which  the 
defendant  admitted  he  had  written,  the  court  ordered  the  defendant 
to  produce  copies  of  these  letters  in  his  possession  for  the  plaintiff's 
inspection,  although  the  defendant  raised  the  objection  that  such 
inspection  might  expose  him  to  criminal  proceedings  for  libel.  And 
this  order  was  affirmed  in  the  Court  of  Appeal,  where  it  was  held 
[*555]  that  if  the  defendant  could  protect  himself  from  production 
at  all,  it  could  only  be  by  his  oath  that  the  production  would  expose 
him  to  criminal  proceedings.  (  Webb  v.  East,  supra.)  This  decision 
overrules  Hill  v.  Campbell  (L.  R.  10  C.  P.  222  ;  44  L.  J.  C.  P. 
97  ;  23  W.  R.  336  ;  32  L.  T.  59),  a  case  which  was  indeed  already 
practically  overruled  by  Fisher  v.  Owen,  (C.  A.)  8  Ch.  D.  645  ;  47 
L.  J.  Ch.  681  ;  26  W.  R.  581  ;  38  L.  T.  252,  577.  Where  the 
defendant  was  in  possession  of  certain  documents,  but  objected  to 
produce  them,  because,  as  he  said  in  his  affidavit,  "  the  production 

(498) 


ADVICE    ON    EVIDENCE.  427 

may,  to  the  best  of  my  information  and  belief,  tend  to  criminate 
me,"  the  court  ordered  their  production.  ( Roe  v.  New  York  Preaa 
and  another,  75  Law  Times  (newspaper),  31.) 

A  solicitor  who  is  a  party  to  an  action  may  refuse  to  produce 
documents  of  which  he  is  in  possession  solely  as  solicitor  for  a  client. 
{Proctor  v.  Smiles,  2  Times  L.  K.  474.) 

Sometimes,  also,  production  is  refused  on  the  ground  of  public 
policy  and  convenience.  This  can  only  be  where  one  party  to  the 
suit  is  officially  in  possession  of  State  documents  of  importance. 
If  the  defendant  be  a  subordinate  officer  of  a  public;  department 
sued  in  his  official  capacity,  he  cannot  claim  privilege  on  the  ground 
of  public  policy  ;  production  can  only  be  refused  on  that  ground 
by  the  head  of  "a  department.  (Beatson  v.  /Skene,  5  H.  &  N.  838  ; 
29  L.  J.  Ex.  430  ;  6  Jur.  N.  S.  780  ;  2  L.  T.  378,  post,  p.  563.)  But 
if  it  be  shown  to  the  court  that  the  mind  of  some  responsible  person 
has  been  brought  to  bear  upon  the  question,  the  objection  will  be 
upheld.     (Nam  v.  Farrer,  37  L.  T.  469  :  W.  N.  1877,  p.  266.) 

Advice  on  Evidence. 

As  soon  as  notice  of  trial  is  given,  or  in  urgent  cases  even  sooner, 
the  papers  should  be  laid  before  counsel  for  his  advice  on  evidence. 
This  should  always  be  done  by  both  sides,  even  in  cases  apparently 
simple  ;  else  the  action  may  be  lost  for  want  of  some  certificate  or 
other  formal  piece  of  proof,  as  in  Collins  v.  Carnegie,  ]  A.  &  E. 
695.  Every  document  in  the  case  should  be  sent  in  to  counsel, 
especially  the  affidavits  of  documents,  the  answers  to  interrogatories, 
and  the  draft  notices  to  produce  and  to  inspect  and  admit.  Also 
some  statement  as  to  the  oral  evidence  proposed  to  be  given,  if  not 
the  full  proofs  which  will  afterwards  form  part  of  the  brief. 

Counsel  in  advising  on  evidence  must  consider,  first,  what  are  the 
issues  in  the  case,  and  which  lie  on  the  plaintiff,  which  on  the 
defendant  ;  and  then  state  seriatim  how  each  is  to  be  proved  or 
rebutted. 

The  onus  lies  on  the  plaintiff  to  prove  that  the  defendant  published 
[*556]  or  uttered  the  defamatory  words,  that  they  were  understood 
in  the  sense  alleged  in  the  innuendo,  that  they  referred  to  the 
plaintiff,  and,  if  the  occasion  be  one  of  qualified  privilege,  that  they 
were  published  or  uttered  maliciously.  In  some  cases  also  it  is 
essential,  in  every  case  desirable,  to  prove  special  damage  resulting 
from  the  words.  It  may  further  be  necessary  to  prove  that  the 
plaintiff  at  the  date  of  publication  held  some  office  or  exercised 
some  profession  or  trade,  and  that  the  words  were  spoken  of  him  in 
the  way  of  such  office,  profession,  or  trade.  If  money  has  been 
paid  into  court,  the  onus  lies  on  the  plaintiff  of  proving  that  the 
amount  is  insufficient.  If  the  Statute  of  Limitations  has  been 
pleaded,  the  onus  lies  on  the  plaintiff  (  Wilby  v.  Henman,  2  Cr.  & 
M.  658)  of  proving  a  publication  of  the  libel  within  six  years  before 
action,  or  the  utterance  by  the  defendant  of  words  actionable  per  se 
within  two  years,  or  that  damage  has  within  six  years  resulted  from 
the  utterance  by  the  defendant  of  a  slander  not  actionable  per  se. 
(See  ante,  p.  520.) 

(499) 


428  PRACTICE    AND    EVIDENCE. 

On  the  defendant,  on  the  other  hand,  lies  the  onus,  of  proving 
privilege,  justification,  or  an  accord  and  satisfaction.  If  he  has 
pleaded  a  plea  under  Lord  Campbell's  Act,  the  onus  lies  on  the 
defendant  to  prove  that  the.  libel  was  inserted  without  gross  negli- 
gence, and  that  a  full  apology  was  inserted  in  proper  type  before 
action  brought,  or  as  soon  as  possible  afterwards. 

The  plaintiff  may  also  offer  evidence  in  aggravation,  the  defend- 
ant in  mitigation,' of  damages.  (See  ante,  pp.  309,  312.)  And 
defendant's  counsel  must  consider  the  advisability  of  giving  a  notice 
under  Order  XXXVI.  r.  31,  post,  p.  577.  For  "the  form  of  such  a 
notice,  see  Precedent  No.  68,  post,  p.   656. 

Each  party  should  be  prepared  with  evidence  not  only  to  prove 
the  issues  which  lie  upon  him,  but  also  to  rebut  his  adversary's  case. 
It  may  be  necessary  to  postpone  the  trial  in  order  to  secure  the 
attendance  of  witnesses  who  are  ill  or  absent  abroad.  (Turner  v. 
Mery  weather,  7  C.  B.  251  ;  18  L.  J.  C.  P.  155  ;  Brown  v.  Murray, 
4  D.  &  R.  830  ;  JTCauley  v.  Thorpe,  1  Chit.  685  ;  5  Madd.  19.) 
In  other  cases  it  may  be  necessary  to  apply  for  a  commission  abroad, 
or  for  the  examination  before  trial  of  a  witness  who  is  dangerously 
ill  or  about  to  leave  the  country.  (Order  XXXVII.  r.  5  ;  Procter  v. 
Tyler,  3  Times  L.  R.  282.)  It  is  generally  necessary  to  state  on 
affidavit  the  general  nature  of  the  evidence  which  such  witness  is 
expected  to  give.     (Barry  v.  Barclay,  15  C.  B.  N.  S.  849.) 

Counsel  should  not  consider  what  documents  will  be  required,  and 
how,  if  the  originals  cannot  be  produced,  they  may  be  proved  by 
Secondary  evidence.  (See  post,  p.  563.)  For  this  purpose  he  must 
carefully  go  through  the  notice  to  inspect  and  admit,  and  the  notice 
[*567]  to  produce,  and  advise  on  their  sufficiency.  He  is  sometimes 
also  consulted  as  to  the  advisability  of  securing  a  special  jury  (Order 
XXXVI.  r.  7  ;  Roberts  v.  Brown,  6  C.  &  P.  757),  or  of  applying 
to  change  the  venue. 

It  is  often  convenient  to  copy  the  advice  on  evidence  into  the 
leader's  brief,  especially  if  any  points  of  law  are  discussed  in  it,  and 
cases  cited. 

Change  of  Venue. 

The  plaintiff  has  prima  facie  the  right  to  fix  the  place  of  trial  ; 
the  defendant  must  therefore  show  a  distinct  preponderance  of  con- 
venience to  oust  the  plaintiff  of  his  right.  Where  the  defendant 
resides  is  quite  immaterial.  {Per  Quain,  J.,  1  Charley,  119  ;  Bitt. 
53  ;  60  L.  T.  Notes,  103.)  Where  the  cause  of  action  arose  has  now 
but  little  to  do  with  the  question.  The  defendant  must  prove  that 
a  trial  in  the  place  which  he  prefers  will  be  less  expensive  and  more 
convenient  for  the  majority  of  witnesses  on  both  sides.  That  it  will 
be  more  convenient  for  defendant's  witnesses  is  alone  no  ground  for 
the  application.  (  Wheatcroft  v.  Mousley,  11  C.  B.  677.)  But  the 
defendant  will  be  entitled  to*  have  the  venue  changed  if  he  can  show 
that  there  is  no  probability  of  a  fair  trial  in  the  place  the  plaintiff 
has  selected,  e.  c/.,  if  a  local  newspaper  of  extensive  circulation  has 
published  unfair  attacks  on  the  defendant  with  reference  to  the  sub- 

(500) 


plaintiff's  special  character.  429 

ject-matter    of    the    action.      (Pi/bns  v.    Scudamore,    Arm    464  ; 
Walker  v.  llrogden,  17  C.  B.  N.  S.  571.) 

Trial. 

In  actions  of  slander  or  libel,  the  plaintiff  usually  states  in  his 
notice  of  trial  that  he  desires  to  have  the  issues  of  fact  tried  by  a 
judge  with  a  jury.  (Ord.  XXXVI.  r.  2.)  If  he  does  not,  the 
defendant  may  signify  his  wish  for  a  jury  by  giving  notice  within 
four  days  of  the  time  of  the  service  on  him  of  the  notice  of  trial,  or 
within  such  extended  time  as  a  master  may  allow,  or  in  his  nut  ice 
of  trial,  if  he  give  one  under  rule  12  of  the  same  Order.  "And 
thereupon  the  same  trial  shall  be  so  tried."  It  is  always  best  to 
have  a  jury  in  these  actions,  and,  as  a  rule,  both  parties  wish  for 
one.     (See  ante,  p.  362.) 

The  plaintiff  is  always  entitled  to  begin,  even  where  the  onus  of 
proof  lies  on  the  defendant.  ( Garter  v.  Jones,  6  C.  &  P.  64  ;  1 
M.  &  R.  281  ;  Mercer  v.  Whall,  5  Q.  B.  447,  462,  463  ;  14  L.  J.  Q.  B. 
267,  272.) 

[*558]  Proof  of  the  Plaintiff' 's  special  Character. 

Where  the  words  are  actionable  only  by  reason  of  the  plaintiff's 
holding  an  office  or  exercising  a  profession  or  trade,  the  plaintiff 
must  prove  that  he  held  such  office  or  exercised  such  profession  or 
trade  at  the  date  of  publication,  and  that  the  words  complained  of 
were  spoken  of  him  in  that  capacity.  Sometimes  the  words  them- 
selves admit  the  plaintiff's  special  character,  or  it  may  be  admitted 
on  the  pleadings  ;  if  so,  it  is,  of  course,  unnecessary  to  give  any 
evidence  on  the  point.  (  Yrisarri  v.  Clement,  3  Bing.  432  ;  4  L.  J. 
(Old  S.)  C.  P.  128  ;   11  Moore,  308  ;  2  C.  &  P.  223.) 

Strigt  proof  of  the  plaintiff's  special  character  is  not,  as  a  rule, 
required.  Tims,  to  prove  that  a  person  holds  a  public  office,  it  is  not 
necessary  to  produce  his  written  or  sealed  appointment  thereto. 
(Berrgman  v.  Wise,  4  T.  R.  366  ;  Cannell  v.  Curtis,  2  Bing.  N1.  C. 
228  ;  2  Scott,  379.)  It  is  sufficient  to  show  that  he  acted  in  that 
office,  and  it  will  be  presumed  that  he  acted  legally.  So,  where  the 
libel  imputes  to  the  plaintiff  misconduct  in  his  practice  as  a  physician, 
surgeon,  or  solicitor,  and  does  not  call  in  question  or  deny  his  qualifi- 
cation to  practise,  he  need  only  prove  that  he  was  acting  in  the 
particular  professional  capacity  imputed  to  him  at  the  time  of  the 
publication  of  the  libel.  (Smith  v.  Taylor,  1  B.  &  P.  N.  R.  196, 
204  ;  Rutherford  v.  £Jva?is,  6  Bing.  451  ;  8  L.  J.  (Old  S.)  C.  P.  86.) 
It  is,  as  a  rule,  sufficient  to  call  the  plaintiff  to  say,  "  I  am  an  M.  R. 
C.  S.,"  or  "lama  barrister."  But  when  the  libel  or  slander  imputes 
to  a  medical  or  legal  practitioner  that  he  is  not  properly  qualified, 
and  the  professional  qualification  is  again  denied  on  the  pleadings, 
the  plaintiff  should  always  be  prepared  to  prove  it,  by  producing  his 
diploma  or  certificate,  duly  sealed  or  signed,  and  stamped,  where  a 
stamp  is  requisite.  At  Common  Law  there  was  no  other  way. 
(Moises  v.  Thornton,  8  T.  R.  303  ;    Collins  v.  Carnegie,  1  A.  &  E. 

(501) 


4,30  PRACTICE    AND    EVIDENCE. 

695  ;  3  N.  &  M.  703  ;  Sparling  v.  Iladdon,  9  Bing.  1 1  ;  2  Moo.  & 
Scott,  14.) 

But  now  the  "Law  List"  is  by  the  23  &  24  Vict,  c  127,  s.  22, 
made  prima  facie  evidence  that  any  one  whose  name  appears  therein 
as  a  solicitor 'is  a  solicitor  duly  certificated  for  the  current  year  ;  and 
similarly,  by  the  21  &  22  Vict.  c.  90,  s.  27,  the  "  Medical  Register" 
is  prima  facie  evidence  that  the  persons  specified  therein  are  duly 
registered  medical  practitioners.  But  if  it  is  known  the  plaintiff's 
qualification  will  be  seriously  challenged  at  the  trial,  it  is  safer  not 
to  rely  solely*;on  such  prim d  facie  proof,  but  to  produce  all  diplomas 
and  certificates.  If  the  plaintiff  sues  as  a  solicitor,  and  his  name 
does  not  appear  in  the  "  Law  List,"  that  may  be  only  because  he 
has  not  [*  559]  taken  out  his  certificate  for  the  present  year  ;  in 
which  case  he  may  still  sue  for  a  libel  on  him  as  solicitor.  (Jones 
v.  Stevens  (1822),  11  Price,  235.)  So,  too,  a  medical  man  can  sue 
for  a  libel  on  him  professionally,  although  his  name  does  not  appear 
in  the  "  Medical  Register,"  if  he  can  "show  by  a  certificate  under 
the  hand  of  the  registrar,  or  in  any  other  way,  that  he  is  duly  quali- 
fied and  entitled  to  be  registered. 

Proof  of  Publication. 

The  plaintiff  must  next  prove  that  the  defendant  published  the 
libel  or  spoke  the  slanderous  words  to  some  third  person.  As  to 
what  is  a  sufficient  publication  in  law,  see  ante,  c.  VI.  pp.  151 — 169. 
As  to  constructive  publication  by  a  servant  or  agent,  see  ante,  pp. 
411—413.  As  to  publication  bv  telegram,  see  Williamson  v.  Freer, 
L.  R.  9  C.  P.  393  ;  43  L.  J.  C.  P.  161  ;  22  W.  R.  878  ;  30  L.  T. 
332  ;  by  postcard,  Robinson  v.  Jones,  4  L.  R.  Ir.  391.  The  sale  of 
each  copy  is  a  distinct  publication.  (72.  v.  Richard  Carlile,  1  Chitty, 
451  ;  Duke  of  Brunswick  v.  Harm.er,  14  Q.  B.  185  ;  72.  v.  Stanger, 
L.  R  6  Q.  B'.  352  ;  40 -L.  J.  Q.  B.  96  ;  19  W.  R.  640.)  Causing  a 
libel  to  be  printed  may  be  a  prima  facie  publication.  (Baldwin  v. 
KJphinston,  2  W.  Bl.  1037.)  But  if  the  libel  never  reaches  the 
hands  of  any  one  except  the  printers  and  compositors,  this  would 
perhaps  in  the  present  day  be  deemed  insufficient.  (  W»tts  v.  Fraser, 
7  A.  &  E.  223  ;  lawless  v.  Anglo- Egyptian  Cotton  and  Oil  Co., 
L.  R.  4.  Q.  B.  262  ;  10  B.  &  S.  226  ;  38  L.  J.  Q.  B.  129  ;  17  W. 
R.  498.) 

If  the  defendant  write  a  libel,  which  is  in  some  way  subsequently 
published,  this  is,  prima  facie  at  all  events,  a  publication  by  the 
defendant.  (Per  Holt,  C.  ,).,  in  R.  v.  Beere,  12  Mod.  221  ;  1  Ld. 
Raym.  414.)  A  letter  is  published  as  soon  as  it  is  posted,  provided 
it  ever  reaches  the  party  to  whom  it  is  addressed,  and  this  will  be 
presumed  if  there  be  no  evidence  to  the  contrary.  Thus,  if  a  letter 
in  the  handwriting  of  the  defendant  be  produced  in  court  with  the 
seal  broken,  and  the  proper  postmarks  outside,  that  is  sufficient 
evidence  of  publication.  (  Warren  v.  Warren,  1  C.  M.  &  R.  250  ; 
4  Tvr.  850  ;  Ward  v.  Smith,  6  Bing.  749  ;  4  M.  &  P.  595  ;  4  C.  & 
P.  302  ;  Shipley  v.  Todhunter,  7  C.  &  P.  680.)  So,  where  a  libel 
has  appeared  iii  print,  and  the  manuscript  from  which  it  was  printed 

(502) 


PROOF    OF    PUBLICATION.  431 

is  proved  to  be  in  the  defendant's  handwriting,  this  is  prima  facie 
a  publication  by  the  defendant.  It  is  not  necessary  to  prov< 
expressly  that  he  directed  or  authorized  the  printing.  (Per  Lord 
Erskine  in  Burdett  v.  Abbot,  5  Dow,  II.  L.  al  p.  201  ;  Bond  v. 
Douglas,  7  C.  &  P.  620  ;  Tarpley  v.  [*560]  Blabey,  2  Bing.  N.  C. 
437  ;  7  C.  &  P.  395  ;  B.  v.  Zowett,  9  C.  &  P.  462  ;  Adams  v. 
^e%,  Ry.  &  M.  1570 

Any  one  who  has  ever  seen  the  defendant  write  (even  though 
once  only,  Garrets  v.  Alexander,  4  Esp.  37),  can  be  called  to  prove 
his  handwriting.  So  can  any  one  who  lias  corresponded  with  the 
defendant,  or  seen  letters  which  have  arrived  in  answer  to  letters 
addressed  to  the  defendant.  Thus,  a  clerk  in  a  merchant's  office 
who  has  corresponded  with  the  defendant  on  his  master's  behalf, 
may  be  called  to  prove  the  handwriting.  (B.  v.  Slaney,  5  C.  &  P. 
213.)  The  usual  course  is  for  the  plaintiff's  counsel  merely  to  ask 
the  witness,  "  Are  you  acquainted  with  the  defendant's  hand- 
writing?" leaving  it*  to  the  defendant's  counsel  to  cross-examine  as 
to  the  extent  of  his  acquaintance.  Such  cross-examination  will 
only  weaken  the  force  of  his  evidence,  not  destroy  its  admissibility. 
(Eagleton  v.  Kingston,  8  Ves.  473  ;  Doe  d.  Mikd  v.  Snckermore, 
5  A.  &  E.  730.)  By  sect.  27  of  the  C.  L.  P.  Act,  1854,  "comparison 
of  a  disputed  writing  with  any  writing  proved  to  the  satisfaction  of 
the  judge  to  be  genuine,  shalf  be  permitted  to  be  made  by  the  wit- 
nesses ;  and  such  writings,  and  the  evidence  of  witnesses  respecting 
the  same,  may  be  submitted  to  the  court  and  jury  as  evidence  of 
the  genuineness  or  otherwise  of  the  writing  in  dispute."  (See  Jones 
v.  Bichards,  15  Q.  B.  D.  439.)  But  the  evidence  of  experts  must 
always  be  received  with  caution.  In  a  recent  case  an  expert  ^  in 
handwriting  swore  positively  that  the  libel  was  in  the  handwriting 
of  the  Lord  Mayor  elect  ;  but  subsequently  a  young  man  came  for- 
ward and  acknowledged  that  he  wrote  it,  and  that  Sir  F.  Truscott 
never  had  anything  to  do  with  the  matter.  (See  also  Seaman  v. 
Netherdift,  1  C.  P.  D.  540  ;  45  L.  J.  C.  P.  798  ;  24  W.  R.  884  ; 
34  L..T.  878  ;  (C.  A.)  2  C.  P.  D.  53  ;  46  L.  J.  C.  P.  128  ;  25  W.  R. 
159  ;  35  L.  T.  784.)  If  the  defendant  be  present  in  court,  he  may, 
it  seems,  be  then  and  there  required  to  write  something  which  the 
court  and  jury  may  compare  with  the  document  in  dispute.  (Doe 
d.  Devine  v.  Wilson,  10  Moo.  P.  C.  at  p.  530.)  So,  too,  letters  not 
otherwise  evidence  in  the  case,  written  by  the  defendant,  and  in 
which  the  plaintiff's  name  was  spelt  in  a  peculiar  manner,  were  held 
admissible  as  evidence  that  the  libel  which  contained  the  plaintiff's 
name  spelt  with  the  same  peculiaritv  was  written  by  the  defendant. 
(Brookes  v.  Tichborne,  5  Ex.  929  ;  20  L.  J.  Ex.  69  ;    14  Jur.  1122.) 

The  Newspaper  Libel  and  Registration  Act,  1881,  was  passed  to 
facilitate  proof  of  publication  of  a  libel  contained  in  a  newspaper. 
It  established  a  "  register  of  newspaper  proprietors  "  to  be  kept  at 
Somerset  House,  and  to  be  open  to  the  inspection  of  the  public. 
(Ante,  pp.  388—391.)  Every  printer  and  publisher  of  a  newspaper 
[*561]  is  bound  to  make  a  return  each  July,  giving  the  names  and 
addresses  of  all  the  proprietors  of  the  paper.  And  a  certified  copy 
of  any  entry  in  this  register  is  made  "  sufficient  prima  facie  evidence 

(5U8) 


432  PRACTICE    AND    EVIDENCE. 

of  all  matters  and  things  thereby  appearing"  (sect. 15,  ante,  pp. 
391,  392),  that  is,  that  the  person  named  therein  is  the  proprietor 
of  the  newspaper,  and,  as  such,  liable  for  any  libel  that  has  appeared 
therein. 

It  is  still,  however,  open  to  the  defendant,  though  registered  as  the 
proprietor  of  the  paper,  to  prove  at  the  trial  that  since  the  last  return, 
and  before  the  publication  of  the  libel,  he  transferred  all  his  interest 
in  the  paper  to  some  one  else.  Section  11,  which  deals  with  transfers, 
permits,  but  unfortunately  does  not  require,  registration  in  the  event 
of  a  change  in  the  proprietorship  of  a  newspaper.  The  transferee 
may  register  his  name  and  address  or  not  as  he  pleases.  (Ante,  p.  389.) 
Hence,  a  plaintiff  or  prosecutor  can  never  be  certain  that  the  regis- 
tered proprietor  is  the  person  liable  for  the  publication  complained 
of.  In  a  civil  case  this  difficulty  maybe  overcome  by  administering 
interrogatories.  (See  ante,  pp.  551—553.)  Or,  if  no  satisfactory 
admission  be  thus  obtained,  the  plaintiff,  must  prove  that  the  news- 
paper "  was  purchased  of  the  defendant,  or  at  any  house,  shop,  or 
office  belonging  to  or  occupied  by  the  defendant,  or  by  his  servants 
or  workmen,  or  where  he  may  usually  carry  on  the  business  of  print- 
ing or  publishing  such  newspaper,  or  where  the  same  maybe  usually 
sold."  (0  &  7  Will.  IV.  c.  76,  s.  8.)  But  it  would  have  been  better 
if  the  legislature  had  made  the  "  return  according  to  Schedule  B." 
compulsory  on  every  transfer,  and  had  further  enacted  that,  till  such 
return  was  registered,  the  former  proprietor  should  remain  liable  for 
everything  published  in  the  newspaper. 

The  statute  6  &  7  Will.  IV.  c.  76,  ss.  6,  8,  13,  formerly  facilitated 
proof  of  publication  of  a  libel  contained  in  a  newspaper  (Mayne  v. 
Fletcher,  9  B.  &  C.  382  ;  R.  v.  Amphlit,  4  B.  &  C.  35)  ;  but  these 
sections  are  now  repealed  by  the  32  &  33  Vict.  c.  24,  s.  1,  sched.  1. 
It  was  decided  under  that  act  that  if  the  title  of  the  newspaper  in 
which  the  libel  appeared  be  identical  with  that  in  the  certificate,  this 
will  be  sufficient  proof  of  the  identity  of  the  newspaper,  although 
the  "place  of  business  "  named  in  the  certificate  be  not  identical  with 
that  named  as  the  address  of  the  printer  at  the  end  of  the  newspaper 
(Baker  v.  Wilkinson,  Car.  &  Marshman,  399.) 

Publication  may  also  be  proved  by  the  evidence  of  an  accomplice 
(R.  v.  Ilaswell  and  Bate,  1  Dougl.  387  ;  R.  v.  Steward,  2  B.  &  Ad. 
12),  or  by  the  defendant's  own  admission.  (R.  v.  Hall,  1  Str.  416.) 
But  such  admission  will  not  be  extended  beyond  its  exact  terms. 
Thus,  an  admission  that  the  defendant  wrote  the  libel  is  no  admis- 
sion that  he  [*  562]  also  published  it.  (  The  Seven  Bishops'  ease,  4 
St.  Tr.  300.)  An  admission  that  defendant  was  the  editor  of  a 
periodical  at  a  certain  date  is  no  evidence  to  connect  him  with  a 
libel  published  in  the  same  periodical  at  a  later  date.     (Macleodv. 

Wakley,  3  C.  &  P.  311.)  But  where  the  defendant  admitted  that 
he  was'  the  author  of  the  book  containing  the  libel,  "  errors  of  the 
press  and  some  small  variations  excepted,"  it  was  held  that  this  was 
sufficient  to  entitle  the  prosecutor  to  put  in  the  book,  and  that  it  lay 
upon  the  defendant  to  show  that  there  were  material  variances.  (R. 
v.  Hall,  1  Str.  416.)  A  witness  may  be  asked  if  he  knows  who  wrote 
the  libel  ;  but  if  he  answers  "  yes,"  he  cannot  be  compelled  to  name 

^504) 


PROOF    OF    THE    LIBEL.  433 

the  person,  because  it  may  be  himself.  (/?.  v.  Slaney,  5  C.  &  P. 
213.)  The  plaintiff  may  even  call  the  defendant  as  a  witness,  nor 
can  counsel  for  the  defendant  object  thai  no  relevanl  question  can 
be  asked  him  that  will  not  lend  to  criminate  him.  The  defendant 
must  go  into  the  box,  and  take  the  objection  himself,  when  the 
question  is  asked.  No  one  can  take  it  for  him.  He  must  state  on 
oath  in  open  court  that  in  his  opinion  to  answer  the  question  would 
tend  to  criminate  him.  (Boyle  v.  Wiseman,  10  Ex.  <>47  ;  24  L.  J. 
Ex.  160;  24  L.  T.  (Old  S.)  2*74.) 

Where  the  facts  are  in  dispute,  it  will  be  for  the  jury  to  decide 
whether  the  defendant  wrote  the  libel,  whether  it  wasever  published 
to  a  third  person  other  than  the  plaintiff,  whether  the  office  where 
the  libel  was  purchased  was  the  defendant's  or  not,  &c,  &C.  When 
the  facts  are  found,  it-  is  for  the  judge  to  decide  whether  there  has 
been  a  publication  in  law  by  the  defendant. 

Proof  of  the  Libel. 

The  libel  itself  must  be  produced  at  the  trial  :  the  jury  are  enti- 
tled in  all  cases  to  see  it.  (  Wright  v.  Woodgate,  2  C.  M.  &  R.  573  ; 
Gilpin,  v.  Folder,  9  Ex.  615  ;  2*3  L.  J.  Ex.  156.)  The  defendant  is 
entitled  to  have  the  whole  of  it  read.  {Cooke  v.  Hughes,  R.  &  M. 
112.)  The  original  must  be  carefully  traced,  Avherc  it  has  passed 
through  many  hands  {Fryer  v.  Gathercole,  4  Ex.  262  ;  18  L.  J.  Ex. 
389  ;  Adams  v.  Kelly,  Ry.  &  Moo.  157),  and  the  identical  one  pub- 
lished must  be  produced  or  accounted  for.  (7?.  v.  Rosenstein,  2  C. 
&  P.  414.)  But  where  a  large  number  of  copies  are  printed  from 
the  same  type,  or  lithographed  at  the  same  time  by  the  same  process, 
none  of  them  are  copies  in  the  legal  sense  of  the  word.  They  are 
are  all  counterpart  originals,  and  each  is  primary  evidence  of  the 
contents  of  the  rest,  {R.  v.  Watson,  2  Stark.  129  ;  Johnson  v.  Hud- 
son and  Morgan,  7  A.  &  E.  233,  n.) 

[*  563]  Where  the  libel  is  contained  in  a  letter  or  memorial  sent 
to  a  Secretary  of  State,  or  to  some  Government,  department,  an 
objection  is  often  raised  to  its  production  on  grounds  of  public 
policy.  If  this  objection  appears  to  the  judge  to  be  well  founded, 
no  evidence  can  be  given  of  the  contents  of  such  letter  or  memorial. 
In  Beatson  v.  Skene  (5  II.  &  K  838  ;  29  L.  J.  Ex.  430  ;  4  Jur.  N. 
S.  780)  it  was  decided  that  the  objection  must  be  taken  by  the 
head  of  the  public  department  of  State,  who  is  alone  able  to  judge. 
This  decision  was  followed  by  Lord  Coleridge  in  November,  1877, 
in  the  case  of  Stoann  v.  Vines,  cited  37  L.  T.  469.  (See  also 
JFFlveney  v.  Connellan,  17  Ir.  C.  L.  R.  55.)  The  rule  on  the 
point  is  that  "  the  court  is  entitled  to  have  the  pledge  and  security 
of  the  head  officer  of  State  to  give  the  reason  for  the  non-produc- 
tion of  those  documents  which  it  is  objected  to  produce,  and  to 
demand  that  he  shall  come  into  the  witness-box,  and  there  say  that 
he  is  the  head  of  the  department,  and  objects  to  such  and  such 
documents  being  produced,  specifying  them,  on  the  ground  of 
public  policy."  {Per  Grove,  J.,  in  Kain  v.  Farrier,  3  7  L.  T.  470.) 
But  in  the  "case  of    Spackman  v.  Gibney,   tried   before   the   same 

28   LIB.  k  SLAN.  (505) 


434  PRACTICE    AND    EVIDENCE. 

learned  judge  at  the  Bristol  Spring  Assizes,  1878,  the  Government 
clerk,  who  had  brought  down  the  document  in  obedience  to  his 
subpoena,  refused  to  produce  it,  stating  that  the  Home  Secretary 
had  ordered  him  to  object  on  grounds  of  public  policy  ;  and  the 
learned  judge  refused  to  trouble  Mr.  Cross  to  come  down  to  Bristol 
to  repeat  what  his  clerk  had  said.  But  a  letter  written  by  a  private 
individual  to  the  Chief  Secretary  of  the  Postmaster  General  com- 
plaining of  the  conduct  of  the  guard  of  the  Exeter  mail,  though  it 
may  be  a  privileged  communication  in  the  sense  that  the  plaintiff 
must  prove  actual  malice,  is  not  a  document  privileged  from  pro- 
duction on  the  ground  of  public  policy.  (Blake  v.  Pilfold,  1  Moo. 
&  Rob.  198.) 

If  the  original  libel  has  been  lost  or  destroyed,  secondary  evi- 
dence may  of  course  be  given  of  it  (Rainy  v.  Bravo,  L.  R.  4  P.  C. 
287  ;  20  W.  R.  873  ;  Gathercole  v.  Miall,  45  M.  &  W.  319),  except 
where  the  libel  is  contained  in  an  official  document,  which  is 
privileged  from  production  on  the  ground  of  public  policy,  in  which 
case  the  same  public  policy  requires  that  no  secondary  evidence  of 
its  contents  shall  be  given.  (Home  v.  Bentinck,  2  Brod.  &  B.  130; 
Anderson  v.  Hamilton,  ib.  156,  n.  ;  Stace  v.  Griffith,  L.  R.  2  P.  C. 
428  ;  6  Moore,  P.  C.  C.  N.  S.  18  ;  20  L.  T.  197  ;  Hawkins  v.  Lord 
Roheby  (Ex.  Ch.),  L.  R.  8  Q.  B.  255.)  The  plaintiff  is  also  entitled 
to  give  secondary  evidence  of  the  contents  of  the  libel,  if  the 
original  is  in  the  defendant's  possession  and  is  not  produced,  after 
notice  to  produce  it  has  been  [*  564]  served  on  the  defendant's 
solicitor  a  reasonable  time  before  the  trial.  (R.  v.  Boucher,  1  F.  & 
F.  486.)  So  also  where  the  libel  is  in  the  possession  of  some  one 
beyond  the  jurisdiction  of  the  court,  who  refuses  to  produce  it,  on 
request,  although  informed  of  the  purpose  for  which  it  is  required. 
(Boyle  v.  Wiseman,  10  Ex.  647;  24  L.  J.  Ex.  160;  Newton  v. 
Chaplin,  10  C.  B.  56  ;  R.  v.  Llanfaethly,  2  E.  &  B.  940  ;  23  L.  J. 
M.  C.  33  ;  R.  v.  Aickles,  1  Leach,  330.)  As  to  copies'  in  the  posses- 
sion of  the  defendant's  solicitor,  see  Paris  v.  -Levy,  2  F.  &  F.  73. 
Where  the  libel  is  written  or  placarded  on  a  wall,  so  that  it  cannot 
conveniently  be  brought  into  court,  secondary  evidence  may  be 
given  of  its  contents.  (Per  Lord  Abinger  in  Mortimer  v.  JiP  Callan, 
6  M.  &  W.  at  p.  68  ;  Bruce  v.  Nicolopulo,  11  Ex.  at  p.  133  ;  24  L. 
J.  Ex.  at  p.  324.) 

All  questions  as  to  the  admissibility  of  secondary  evidence  are 
for  the  judge,  and  should  be  decided  by  him  then  and  there. 
{Boyle  v.  Wiseman,  11  Ex.  360  ;  24  L.  J.  Ex.  224  ;  25  L.  T.  (Old 
S.)  203.) 

If  the  words  proved  differ  materially  from  those  set  out  in  the 
statement  of  claim,  this  is  a  variance  which  would  formerly  have 
been  fatal.  (Bell  v.  Byrne,  13  East,  554  ;  Tabart  v.  Tipper,  1 
Camp.  350  ;  Cartwright  v.  Wright,  1  D.  &  Ry.  230  ;  Cook  v. 
Stokes  and  Wife,  1  Moo.  &  R.  237  ;  Rainy  v.  Bravo,  L.  R.  4  P. 
C.  287  ;  20  W.  R.  873.)  But  now  the  judge  has  ample  power  to 
amend  the  record,  if  in  his  discretion  he  considers  such  amend- 
ment can  be  made  without  prejudice  to  the  defendant.  (Order 
XXVIII.  rr.  1,  6.)     But  no  amendment  will  be  made,  the  result  of 

(506) 


TROOP   OF   THE    SLANDER.  435 

which  will  be  to  substitute  a  totally  different  cause  of  action  for 

the  former  one  ( C v.  Lindsell,  11  J.  P.  352),  or  to  render  the 

statement  of  claim  demurrable.  (Marlyn  v.  Williams,  1  11.  &  N. 
817;  26  L.  .1.  Ex.  117;  Caulfield  v.  Whitooorthj  \c>  W.  \l.  936;  18 
L.  T.  527.)  The  defendant  is  entitled  to  an  adjournment  if  he 
really  desires  to  justify  the  words  newly  inserted  in  the  stati  tnent 
of  claim  by  such  amendment.  (Saunders  v.  Bate,  1  II.  &  X.  402. 
And  see  Foster  v.  Pointer,  9  C.  &  P.  718  ;  May  v.  Brown,  3  J  \.  & 
C.  11:3  ;  Lord  Churchill  v.  Hunt,  2  B.  &  Aid.  685.) 

Proof  of  the  speaking  of  the  Slander. 

In  cases  of  slander,  the  only  way  to  prove  publication  is  by  call- 
ing those  who  heard  the  defendant  speak  the  words.  It  is  not,  in 
strictness,  sufficient  to  prove  that  the  defendant  spoke  words 
equivalent  to  those  set  out  in  the  statement  of  claim  (  Armituge  v. 
Dunster  (1785)  4  Dougl.  291  ;  Maitland  and  others  v.  Gqldney  and 
another  (1802),  2  East,  426.)  Thus;  where  the  declaration  alleged 
that  the  defendant  [*  565]  stated  as  a  fact  that  "  A.  could  not  pay 
his  laborers,"  and  the  evidence  was  that  he  had  asked  a  question, 
"Have  you  heard  A.  cannot  pay  his  laborers?"  the  plaintiff  was 
nonsuited.  (Barnes  v.  Ilolloway  (1799),  8  T.  R.  150.)  But  now, 
if  the  words  proved  convey  practically  the  same  meaning  as  the 
words  laid,  the  variance  will  be  held  immaterial,  or  else  the  judge 
will  amend.  (Ban caster  v.  Ilewson,  2  Man.  &  Ry.  170  ;  Sydenham 
v.  Man  (1617),  Cro.  Jac.  407  ;  Orpwood  v.  Barkes,  vel  Parkes,  4 
Bing.  261  ;   12  Moore,  492  ;  Smith  v.  Knowelden,  2   M.  &  Gr.  561.) 

It  was  never  necessary,  however,  to  prove  all  the  words  laid  m 
the  declaration,  if  such  of  them  as  are  proved  are  intelligible  and 
actionable  by  themselves.     (Per  Lawrence,  J.,  2  East,  434.) 

If  the  witness  committed  the  words  to  writing  shortly  after  the 
defendant  uttered  them,  he  may  refer  to  such  writing  to  refresh  his 
memory  ;  but  it  must  be  the  original  memorandum  that  is  referred 
to,  not  a  fair  copy.  (Burton  v.  Plummet,  2  A.  &  E.  343.)  And  so 
where  the  action  is  for  procuring  a  libel  to  be  published  by  making 
a  verbal  statement  to  the  reporter  of  a  newspaper,  who  took  it  down 
in  writing,  the  original  writing  taken  down  by  the  reporter  and 
handed  by  him  to  the  editor  must  be  produced  in  court ;  otherwise 
it  will  not  appear  that  it  was  the  same  or  substantially  the  same  as 
the  libel  which  appeared  in  the  newspaper.  (Adams  v.  Kelly,  Ry. 
&  Moo.  157.) 

Where  the  governor  of  a  British  colony  spoke  to  the  Attorney- 
General  in  his  official  capacity  words  defamatory  of  the  plaintiff, 
and  the  Attorney-General  was  called  as  a  witness  in  an  action  against 
the  governor,  it  was  held  that  he  was  not  bound  to  disclose  what  the 
governor  had  said  to  him.     (  Wyatt  v.  Gore,  Holt,"  N.  P.  299.) 

If  the  words  spoken  be  in  a  foreign  language,  some  one  must  be 
called  to  prove  their  meaning  ;  and  it  must  be  further  proved  that 
those  who  heard  them  understood  that  language  ;  else  there  is  no 
publication.  But  this  will  be  presumed  where  the  words  are  spoken 
in  the  vernacular  of  the  locality.     (Ante,  p.  109.) 

*  (507) 


436  PRACTICE    AND    EVIDENCE. 

Evidence  as  to  the  Innuendo. 

Whenever  the  words  used  are  not  well-known  and  perfectly  intel- 
ligible English,  but  are  foreign,  local,  technical,  provincial,  or 
obsolete  expressions,  parol  evidence  is  admissible  to  explain  their 
meaning,  provided  such  meaning  has  been  properly  alleged  in  the 
statement  of  claim  by  an  innuendo.  The  rule  is  the  same  where 
words  which  have  a  meaning  in  ordinary  English  are  yet,  in  the 
particular  instance  [*566]  before  the  court,  clearly  used  not  in  that 
ordinary  meaning,  but  in  some  peculiar  sense  ;  as  in  the  case  of 
many  slang  expressions.  But  where  the  words  are  well-known  and 
perfectly  intelligible  English,  evidence  cannot  be  given  to  explain 
that  meaning  away,  unless  it  is  first  in  some  way  shown  that  that 
meaning  is  for  once  inapplicable.  This  may  appear  from  the  words 
themselves  :  to  give  them  their  ordinary  English  meaning  may 
make  nonsense  of  them.  But  if  with  their  ordinary  meaning  the 
words  are  perfectly  good  sense  as  they  stand,  facts  must  be  given 
in  evidence  to  show  that  they  may  have  conveyed  a  special  mean- 
ing on  this  particular  occasion.  After  that  has  been  done,  a  by- 
stander may  be  asked,  "What  did  you  understand  by  the  expression 
used  ?"  But  without  such  a  foundation  being  laid,  the  question  is 
not  admissible.  (Daines  v.  Hartley,  3  Exch.  200  ;  18  L.  J.  Ex.  81; 
12  Jur.  1093  ;  Burnett  v.  Allen,  3  H.  &  N.  376  ;  27  L.  J.  Ex.  415  ; 
Humphreys  v.  Miller,  4  C.  &  P.  7  ;  -Duke  of  Brunswick  v.  llarmer, 
3  C.  &  K.  10.)  And  if  it  be  put  and  answered,  the  answer  is  not 
evidence  ;  the  jury  must  not  act  on  it.  (Simmons  v.  Mitchell,  6 
App.  Cas.  156  ;  50  L.  J.  P.  C.  11  ;  29  W.  R.  401  ;  43  L.  T.  710.) 
And  this  is  so,  whether  the  word  can  be  found  in  the  last  edition  of 
the  English  dictionary  or  not.  (Homer  v.  Taunton,  5  H.  &  N. 
661.)  Figurative  or  allegorical  terms  of  a  defamatory  character,  if 
of  well-known  import,  need  no  evidence  to  explain  their  meaning  ; 
e.r/.  words  imputing  to  a  person  the  qualities  of  the  "  frozen  snake" 
in  the  fable.  (Hoare  v.  Silverlock,  12  Q.  B.  624  ;  17  L.  J.  Q.  B. 
306.)  Nor  do  historical  allusions  or  comparisons  to  odious,  notori- 
ous or  disreputable  persons  :  thus,  wdiere  the  conduct  of  the  plain- 
tiff, in  a  case  which  he  conducted  as  attorney  for  one  of  the  parties* 
was  compared  to  that  of  "  Messrs.  Quirk,  Gammon  and  Snap,"  the 
novel  "Ten  Thousand  a  Year"  was  put  in  and  taken  as  read. 
(  Woodgate  v.  Bidout,  4  F.  &  F.  202.) 

Wherever  the  wrords  sued  on  are  susceptible  both  of  a  harmless 
and  an  injurious  meaning,  it  will  be  a  question  for  the  jury  to  de- 
cide which  meaning  was  in  fact  conveyed  to  the  hearers  or  readers 
at  the  time  of  publication.  It  will  be  of  no  avail  for  the  defendant 
to  urge  (except,  perhaps,  in  mitigation  of  damages)  that  he  intended 
the  words  to  convey  the  innocent  meaning,  if  the  jury  are  satisfied 
that  ordinary  bystanders  or  readers  would  certainly  have  under- 
stood them  in  the  other  sense.  (Fisher  v.  Clement,  10  B.  &  C.  472.) 
Every  man  must  be  taken  to  have  intended  the  natural  and  proba- 
ble consequences  of  his  act.  The  plaintiff  may  give  evidence  of 
surrounding  circumstances  from  which  a  defamatory  meaning  can 
be  inferred  ;  he  may  call  witnesses  to  state  how  they  understood 

^508) 


INNUKMX). 


437 


tlic  libel  ;  though  the  jury  [*567]  arc  nol  bound  to  adopl  the  opin- 
ions of  such  witnesses.  (Broomev.  Gosden,  I  C.  B.  732.)  Also  in 
this  case  evidence  of  subsequent  words  of  the  same  imporl  may  be 
given,  so  as  to  explain  and  point  the  libel  charged.  (Peara  v. 
Ornsby,  I  M.  &  Rob.  455  ;  ante,  p.  98.) 

The  plaintiff  may  also  show  thai   the  words,  though  apparently 
commendatory,  were  spoken  ironically. 

If,  however,  the  words  are  in  their  primary  sense  nol  actionable, 
and  there  is  no  evidence  of  any  facts  known  both  to  the  writer  and 
1  he  person  to  whom  he  wrote,  which  could  reasonably  induce  the 
latter  to  put  upon  them  any  actionable  secondary  meaning,  the 
judge  should  stop  the  case.  (Capital  and  Counties  Haul:  v.  Henty 
and  Sons,  (C.  A.)  5  C.  P.  1).  514  ;  49  L.  ^.  C.  I\  830  ;  28  W.  R. 
851  ;  43  L.  051  ;  (II.  L.)  7  App.  (as.  71!  ;  52  L.  .1.  (.>.  15.  232  ;  31 
W.  R.  157  ;  47  L.  T.  602  ;  47  J.  1\  214  ;  ante ,  p.  115  ;  Jit/el  v. 
Tatnell,  29  W.  R.  172  ;  43  L.  T.  507.)  So,  too,  if  the  words  are 
not  reasonably  susceptible  of  the  defamatory  meaning  put  upon 
them  by  the  innuendo,  the  judge  should  nonsuit  the  plaintiff.  (  Mul- 
ligan v.  Cole  and  others,  L.  R.  10  Q.  B.  549  ;  44  L.  .J.  ().  1 1.  153  ; 
33  L.  T.  12  ;  ante,  p.  117.)  If,  however,  in  his  opinion  the  words 
are  capable  of  the  meaning  ascribed  to  them  by  the  innuendo,  and 
there  is  any  evidence  to  go  to  the  jury  that  they  were  used  with  that 
meaning,  then  it  will  be  for  the  jury 'to  decide  whether  in  fact  the 
words  were  understood  in  that  sense  by  those  who  heard  or  read 
them. 

Proof  that  the   Words  refer  to  the  Plaintiff. 

If  the  libel  does  not  name  the  plaintiff,  there  maybe  need  of 
some  evidence  to  show  who  wTas  meant.  The  plaintiff  may  give 
evidence  of  all  "surrounding  circumstances  ;"  i.  e.,  the  cause  and 
occasion  of  publication,  later  statements  made  by  the  defendant, 
and  other  extraneous  facts  which  will  explain  and  point  the  allusion. 
The  plaintiff  may  also  call  at  the  trial  his  friends  or  others  ac- 
quainted with  the  circumstances,  to  state  that  on  reading  the  libel 
they  at  once  concluded  that  it  was  aimed  at  the  plaintiff.  (Broome 
v.  'Gosden,  1  C.  B.  728  ;  R.  v.  Barnard,  Ex  parte  Lord  P.  Coma; 
43  J.  R  127  ;  ante,  p.  133.)  It  is  not  necessary  that  all  the  world 
should  understand  the  libel  ;  it  is  sufficient  if  those  who  know  the 
plaintiff  can  make  out  that  he  is  the  person  meant.  (Bourke  v. 
Warren,  2  C.  &  P.  310.)  [In  Pastwood  v.  Holmes  (1  F.  &  F. 
349),  Willes,  J.,  w^ould  not  allow  a  witness  to  be  asked,  "  To  whom 
did  you  understand  the  words  to  apply  ?"  on  the  ground  that  that 
was  the  question  for  the  jury.  But  the  circumstances  [*  568]  of 
that  case  were  peculiar.]  Evidence  that  the  plaintiff  was  jeered  at 
at  a  public  meeting  is  admissible  to  show  that  his  neighbors  under- 
stood the  libel  as  referring  to  him.  (  Cook  v.  VSard,  4  M.  &  P.  99; 
6  Bing  412.)  So,  in  Da  Bost  v.  Beresford  (2  Camp.  511),  Lord 
Ellenborough  held  that  the  declarations  made  by  spectators, _  while 
they  were  looking  at  a  libellous  caricature,  were  admissible  in  evi- 
dence to  showT  whom  the  figures  were  intended  to  represent. 

<509) 


438  PRACTICE    AND    EVIDENCE. 

Proof  that   the    Words  were  spoken  of  the  Plaintiff  in  the  way  of 
Jus  Office,  Profession  or  Trade. 

It  is  not  enough  for  the  plaintiff  to  prove  his  special  character, 
and  that  the  words  refer  to  himself  ;  he  must  further  prove  that  the 
words  refer  to  himself  in  that  special  character,  if  they  be  not  other- 
wise actionable.  It  is  a  question  for  the  jury  whether  the  words, 
were  spoken  of  the  plaintiff  in  the  way  of  his  office,  profession,  or 
trade.  It  is  by  no  means  necessary  that  the  defendant  should  ex- 
pressly name  the  plaintiff's  office  or  trade  at  the  time  he  spoke,  if 
his  words  must  necessarily  affect  the  plaintiff's  credit  and  reputa- 
tion therein.  (Jones  v.  Littler,  7  M.  &  W.  423  ;  10  L.  J.  Ex.  171. 
See  ante,  p.  125.)  But  often  words  may  be  spoken  of  a  professional 
man  which,  though  defamatory,  in  no  way  affect  his  profession, 
e.  y.,  an  imputation  that  an  attorney  had  been  horsewhipped  off  the 
course  at  Doncaster  (Doyley  v.  Roberts,  3  Bing.  N.  C.  835  ;  5 
Scott,  40  ;  3  Hodges,  154  ;  ante,  p.  77),  or  that  a  physician  had 
committed  adultery.  (Ayre  v.  Craven,  2  A.  &  E.  2  ;  4  N.  &  M. 
220  ;  ante,  p.  78.  See  further,  ante,  pp.  67 — 71.)  But  any  impu- 
tation on  the  solvency  of  a  trader,  any  suggestion  that  he  had  been 
bankrupt  years  ago,  is  clearly  a  reflection  on  him  in  the  way  of  his 
trade.     (Ante,  p.  80.) 

Evidence  of  Malice. 

The  judge  must  decide  whether  the  occasion  is  or  is  not  privi- 
leged, and  also  whether  such  privilege  is  absolute  or  qualified. 
If  he  decide  that  the  occasion  was  one  of  absolute  privilege,  the 
defendant  is  entitled  to  judgment,  however  maliciously  and 
treacherously  he  may  have  acted.  If,  however,  the  privilege 
was  only  qualified,  the  onus  lies  on  the  plaintiff  of  proving 
actual  malice.  {Clark  v.  Molyneux,  (C.  A.)  3  Q.  B.  D. 
237  ;  47  L.  J.  Q.  B.  230  ;  26  W  R.  104  ;  37  L.  T.  694.) 
This  he  may  do  either  by  extrinsic  evidence  of  personal 
ill-feeling  (ante,  pp.  275,  281),  or  by  intrinsic  evidence,  such 
as  the  exaggerated  language  of  the  libel,  the  mode  and  extent  of 
[*569]  publication,  and  other  matters  in  excess  of  the  privilege.  (Ante, 
pp.  281 — 290.)  Any  other  words  written  or  spoken  by  the  defen- 
dant of  the  plaintiff,  and  indeed  all  previous  transactions  or  com- 
munications between  the  parties,  are  evidence  on  this  issue.  The 
defendant  often  makes  the  mistake  of  cross-examining  the  plaintiff 
severely  on  such  previous  matters,  with  the  view  no  doubt  of 
showing  that  in  all  these  transactions  the  plaintiff  was  solely  to 
blame.  The  jury,  as  a  rule,  Avill  hold  both  parties  to  a  silly  quarrel 
equally  blameworthy.  But  even  if  they  adopt  the  defendant's  view 
that  all  the  provocation  was  given  by  the  plaintiff,  this  will  only  tell 
against  the  defendant.  For  such  provocation  must  produce  a  feeling 
of  resentment,  or  at  least  of  injured  innocence,  in  the  defendant's 
mind  5  and  if,  under  the  influence,  of  such  feeling,  he  writes  or 
speaks  a  falsehood  of  his  late  antagonist,  such  falsehood  will  prob- 
ably be  deemed  spiteful  and  malicious. 

(510; 


EVIDENCE    OF    DAMAGE.  439 

Placing  a  plea  of  justification  on  the  record  is  no  evidence  of 
malice.  ( Wilson  v.  Robinson,  7  Q.  B.  68;  14  L.  J.  Q.  B.  196  ;  9 
Jur.  726  ;  Caulfield  v.  WhUworth,  16  W.  R.  9:36;  18  L.  T.  .527.) 
But  persisting  in  it  may  be,  if  there  be  any  other  circumstance  in 
the  case  suggesting  malice,  but  not  otherwise.  (  Warwickw.  Eoulkes, 
12  M.  &  W.  508.)  ('are  must  be  taken  in  citing  Simpson  v.  Robin- 
son (12  Q.  B.  511),  to  refer  to  the  judgments  of  the  court  ;  us  the 
headnote  is  declared  by  Willes,  J.,  in  Caulfield  v.  Whitworth,  to  be 
misleading-.  Proof  that  the  defendant  at  the  time  of  publication 
knew  that  what  lie  was  saying  or  writing  was  false,  i^  proof  positive 
of  malice.  Proof  that  in  fact  the  words  are  untrue  is  no  evidence 
of  malice  {ante  p.  272)  ;  the  falsity  of  the  words  is  indeed  always 
presumed  in  the  plaintiff's  favour.  (Browne  v.  Croome,  2  Stark. 
297  ;  Cornwall  v.  Richardson,  R.  &  M.  305  ;  Guy  v.  Gregory,  9 
C.  &  P.  584  ;  Brine  v.  Bazalgette,  3  Exch.  692  ;  18  L.  J.  Ex.  ":;4s. 
There  must  have  been  some  other  facts  suggesting  malice  in  Palmer 
v.  Ilummersto))  (1  Cababe  &  Ellis,  36)  ;  or  else  Day,  J.,  thought  it 
safer  to  leave  the  question  to  the  jury  and  so  put  an  end  to  the 
litigation.  Hence  the  plaintiff  cannot,  as  a  rule,  give  any 
evidence  of  his  own  good  character.  (Ante,  p.  310.)  But  where 
the  parties  have  been  living  in  the  same  house  for  a  long  time,  as 
master  and  servant,  and  the  master  must  have  known  the  true 
character  of  his  servant,  and  yet  has  given  a  false  one,  there  the 
plaintiff  is  allowed  to  give  general  evidence  of  his  good  character,  and 
to  call  other  servants  of  the  defendant  to  show  that  no  complaints  of 
misconduct  were  made  against  the  plaintiff  whilst  he  was  in  defen- 
dant's service  ;  for  such  evidence  tends  to  show  that  defendant,  at  the 
time  he  gave  plaintiff  a  bad  character,  knew  that  what  he  was  writing 
[*570]  was  untrue,  which  would  be  proof  positive  of  malice.  (Foun- 
tain v.  Boodle,  3  Q.  B,  5  ;  2  G.  &  D.  455  ;  Rogers  v.  Sir  Gervas 
Clifton,  3  B.  &  P.  587,  ante,  p.  203.)  But  in  any  other  case,  if  no 
justification  be  pleaded,  and  yet  the  plaintiff's  counsel  gives  evidence 
of  the  falsity  of  the  libel,  this  will  let  in  evidence  on  the  other  side 
of  the  truth  of  the  statement.  (Per  Lord  Ellenborough  in  Brown 
v.    Croome,  2  Stark.  298  299.) 

Rebutting  Justification. 

The  plaintiff  may  object  at  the  trial  that  a  plea  of  justification  is 
insufficient,  whether  such  objection  has  been  taken  on  the  pleadings 
or  no.  Edmonds  v.  Waller  and  another  (3  Stark.  7)  is  now  bad 
law.  The  plaintiff's  counsel  may,  if  he  chooses,  in  the  first  instance 
rebut  the  justification  ;  or  he  may  leave  such  proof  till  the  reply, 
when  he  will  know  the  strength  of  defendant's  case,  but  lie  cannot, 
in  the  absence  of  special  circumstances,  call  some  evidence  to  rebut 
the  justification  in  the  first  instance,  and  more  afterwards,  thus 
dividing  his  proof.     (Browne  v.  Murray,  R.  &  M.  254.) 

Evidence  of  Damage. 

The  plaintiff  need  give  no  evidence  of  any  actual  damage  where 
the  words  are  actionable  per  se  •  he  can  nevertheless  recover  sub- 

1511) 


440  PRACTICE    AND    EVIDENCE. 

stantial  damages.  {Tripp  v.  Thomas,  3  B.  &  C.  427  ;  1  C.  &  P. 
477  ;  In  (/ram  v.  Lawson,  0  Bing.  N.  C.  212.)  But  if  the  plaintiff 
has  suffered  any  special  damage,  this  should  he  pleaded  and 
proved.  It  cannot  he  proved  unless  it  has  been  pleaded.  {liluck 
v.  Lover  lug,  1  Times  L.  R.  497.)  As  to  what  constitutes  a  special 
damage,  see  ante,  pp.  297 — 5309.  As  to  .what  damage  is  too  remote, 
see  ante,  pp.  325 — 336. 

Where  the  words  are  not  actionahle  per  sc,  the  plaintiff  cannot 
prove  a  general  loss  of  custom  ;  he  must  call  individual  customers 
and  friends  to  state  why  they  have  ceased  to  deal  at  his  shop,  or  to 
entertain  him.  {Ante,  p.  303.)  Such  witnesses  cannot,  however, 
he  called  unless  their  names  have  been  set  out  in  the  statement  of 
claim  or  the  particulars.  It  must  also  he  proved  that  they  heard  of 
the  charge  against  the  plaintiff  from  the  defendant,  and  from  no 
one  else.  It  will  not  he  sufficient  to  prove  that  they  heard  a  rumour, 
and  that  the  defendant  set  such  rumour  afloat.  (See  ante,  p.  330  ; 
Dixon  v.  Smith,  5  II.  &  N.  450  ;  29  L.  J.  Ex.  125  ;  JJateman  v. 
Lyall,  7  C.  B.  N.  S.  638.) 

The  plaintiff  may  also  call  evidence  in  aggravation  of  damages, 
as  to  which  see  ante,  pp.  309 — 311. 

[*571]  Nonsuit. 

Strictly  there  is  no  longer  such  a  thing  as  a  nonsuit.  Ord.  XLI. 
r.  6  of  1875  has  not  been  re-enacted;  and  by  Ord.  XXXVI.  r.  39,  the 
judge  must  direct  that  judgment  be  entered,  if  at  all,  for  one  party 
or  the  other.  Still  the  word  is  a  convenient  one  to  denote  the  act 
of  the  judge  when  he  withdraws  the  case  from  the  jury  and  directs 
judgment  to  be  entered  for  the  defendant  without  (or  in  spite  of) 
their  verdict. 

It  is  usually  at  the  close  of  plaintiff's  case  that  the  defendant's 
counsel  submits  to  the  judge  that  there  is  no  case  for  him  to  answer. 
Some  judges,  however,  decline  to  consider  the  question  at  this  stage 
of  the  action,  unless  defendant's  counsel  at  once  announces  that  he 
intends  to  call  no  witnesses. 

The  judge  should  direct  judgment  to  be  entered  for  the  defen- 
dant : — 

(l.)  If  there  is  no  evidence  that  the  defendant  published  the  words 
at  all  or  (if  the  Statute  of  Limitations  be  pleaded)  that  he  did  so 
within  the  period  prescribed. 

(2.)  If  there  is  no  evidence  that  the  words  refer  to  the  plaintiff. 

(3.)  If  the  words  proved  are  not  actionable  per  se,  and  there  is  no 
evidence  of  any  special  damage. 

(4.)  If  the  words  are  actionable  by  reason  only  of  their  being 
spoken  of  the  plaintiff  in  the  way  of  his  office,  profession,  or  trade, 
and  there  is  no  evidence  that  the  words  were  so  spoken,  or  that  the 
plaintiff  held  such  office  or  exercised  such  profession  or  trade  at  the 
time  of  publication. 

(5.)  If  the  words  are  not  actionable  in  their  natural  and  primary 
signification,  and  there  is  no  innuendo  ;  or  if  the  only  innuendo  puts 
upon  the  words  a  meaning  that  they  cannot  possibly  bear.     If,  how- 

(512) 


EVIDENCE    FOR   THE    DEFENDANT.  441 

ever,  it  is  reasonably  conceivable  that  those  addressed  might  by 
reason  of  any  tads  known  to  them  have  put  upon  the  words  the 
secondary  meaning  ascribed  to  them  by  the  innuendo,  then  it  will 
be  a  question  for  the  jury  in  which  meaning  the  words  were  in  fact 
understood.  Whenever  the  words,  though  primarily  not  actionable, 
are  yet  reasonably  susceptible  of  a  defamatory  meaning,  the  judge 
should  not  stop  the  case;  if  he  does  so,  the  Divisional  Court  will 
order  a  new  trial.  {Hurt  and  another  v.  Wall,  2  C.  P.  IX  146;  46 
L.  J.  C.  P.  227;  25  W.  R.  373.)  "It,  is  only  when  the  judge  is 
satisfied  that  the  publication  cannot  he  a  libel,  and  that,  if  it  is 
found  by  the  jury  to  be  such,  their  verdict  will  be  set,  aside,  that  It 
is  justified  in  withdrawing  the  question  from  their  cognizance."  {Per 
Kelly,  C.  B.,  L.  R.  4  Exch.  at  p.  288.)  Where  the  words  of  the 
[*572]  libel  are  ambiguous,  allegorical^  or  in  any  way  equivocal,  and 
the  jury  have  found  that  they  were  meant  and  used  in  a  defamatory 
sense,  the  court  will  not  set  aside  their  verdict,  unless  it  can  be 
clearly  shown  that,  on  reading  the  whole  passage,  there  is  no  possible 
ground  for  the  construction  put  upon  it  by  the  jury.  (  abare  v. 
Silrerlock,  12  Q.  B.  624;  17  L.  J.  Q.  B.  306  ;  Fray  v.  Fray,  17  C. 
B.  K  S.  603;  34  L.  J.  C.  P.  45  ;  10  Jur.  X.  S.  1153.)  But  where  the 
words  are  not  reasonably  capable  of  any  defamatory  meaning,  there 
the  judge  will  be  right  in  directing  a  nonsuit.  {Huntx.  Goodlake, 
43  L.  J.  C.  P.  54;  29  L.  T.  472;  Mulligan  v.  Cole  and  others,  L.  R. 
10  Q.  B.  549  ;  44  L.  J.  Q.  B.  153  ;  33  L.  T.  12  ;  ante,  p.  117.) 

(6.)  If  the  occasion  of  publication  was  one  of  absolute  privilege. 

(7.)  If  the  occasion  is  clearly  or  admittedly  one  of  qualified  privi- 
lege, and  there  is  no  evidence,  or  not  more  than  a  scintilla  of  evi- 
dence, of  malice  to  go  to  the  jury.  If  the  evidence  adduced  to  prove 
malice  is  equally  consistent  with  either  the  existence  or  the  non- 
existence of  malice,  the  judge  should  stop  the  case  ;  for  there  is 
nothing  to  rebut  the  presumption  which  the  privileged  occasion  has 
raised  in  the  defendant's  favour.  {Somerville  v.  Hawkins,  10  C.  B. 
583  ;  20  L.  J.  C.  P.  131  ;  15  Jur.  450  ;  Harris  v.  Thompson,  13  C.  B. 
333  ;  Taylor  v.  Hawkins,  16  Q.  B.  308  ;  20  L.  J.  Q.  B.  313;  15  Jur. 
746.) 

(8.)  Where,  however,  the  question  of  privilege  involves  matters 
of  fact  which  are  disputed,  it  will  be  for  the  jury  to  find  the  facts, 
and  for  the  judge  subsequently  to  decide  whether  on  the  facts  so 
found  the  occasion  is  privileged.  {Beatso/i  v.  Skene,  5  II.  &  N".  838; 
29  L.  J.  Ex.  430;  6  Jur.  N.  S.  780;  2  L.  T.  378.)  And  the  judge  is 
not  bound  to  rule  whether  the  occasion  is  privileged  or  not  till  after 
the  defendant  has  called  all  his  witnesses.  {Per  Cockburn,  C.  J.,  in 
Hancock  v.  Case,  2  F.  &  F.  710.) 

The  judge  at  the  trial  has  full  power  to  amend  any  defect  or  error 
in  any  pleading  or  proceeding  on  such  terms  as  may  seem  just  (Ord. 
XXVIII.  rr.  1,  6,  12),  and  to  add  or  strike  out,  or  substitute,  a 
plaintiff  or  defendant.      (Ord.  XVI.  r.  12.) 

Evidence  for  the  Defendant. 

The  defendant,  as  we  have  seen,  is  entitled  to  have  the  whole  libel 
read,  or  the  whole  of  the  conversation,  in  which  the  slander  was 

(513) 


442  PRACTICE    AND    EVIDENCE. 

uttered,  detailed  in  evidence.  If  the  alleged  libel  refers  to  any  other 
document,  the  defendant  is  also  entitled  to  have;  the  document  read, 
as  part  of  the  plaintiff's  case.  (  Weaver  v.  Lloyd,  I  C.  &  P,  296  ; 
[*573]  Thornton  v.  /Stephen,  2  M.  &  Rob.  45  ;  Hedley  v.  Barlow 
and  another,  4  F.  &  F.  227.)  So  where  the  action  is  brought  for  a 
criticism  on  the  plaintiff's  book,  no  imputation  being  cast  on  him 
personally,  it  was  held  that  the  plaintiff  ought  to  put  in  the  book 
criticised  as  part  of  his  own  case.  (Strauss  v.  Francis,  4  F.  &  F. 
939,  1107".)  This  may  save  the  defendant  from  the  necessity  of 
giving  any  evidence.  But  where  a  paragraph  in  a  subsequent 
number  of  a  newspaper  is  given  in  evidence  by  the  plaintiff  to  show 
malice,  the  rest  of  the  newspaper  is  no  part  of  plaintiff's  case,  unless 
it  refers  to  the  special  paragraph  put  in.  The  defendant  is,  there- 
fore, not  entitled  to  have  other  passages  in  that  newspaper  read. 
(Darby  v.   Onseley,  1  II.  &  K  ;  25  L.  J.  Ex.  227.) 

The  defendant's  counsel  often  prefers  not  to  call  any  witnesses,  so 
as  to  have  the  last  word  with  the  jury.  He  relies  instead  on  the 
cross-examination  of  the  plaintiff's  witnesses.  These  may  be  cross- 
examined  not  only  as  to  the  facts  of  the  case,  but  also  "  to  credit ; " 
that  is,  as  to  matters  not  material  to  the  issue,  with  a  view  of  shak- 
ing their  whole  testimony.  But  in  order  to  prevent  the  case  from 
thus  branching  out  into  all  manner  of  irrelevant  issues,  it  is  wisely 
provided  that  on  such  matters  the  defendant  must  take  the  witness's 
answer  :  he  cannot  call  any  evidence  to  contradict  it.  There  is  one 
exception.  By  sect.  24  of  the  Common  Law  Procedure  Act,  1854, 
if  a  witness  in  any  cause  be  questioned  as  to  whether  he  has  been 
convicted  of  any  felony  or  misdemeanour,  and  if  he  either  denies 
the  fact,  or  refuses  to  answer,  the  opposite  party  may  prove  such 
conviction,  however  irrelevant  the  fact  of  such  conviction  may  be 
to  the  matter  in  issue  in  the  cause.  (  Ward  v.  Sinfiehl,  49  L.  J.  C. 
P.  696  ;  43  L.  T.  253.)  The  right  method  of  proving  a  conviction 
at  the  Assizes  or  Quarter  Sessions,  either  for  this  purpose,  or  as 
evidence  under  a  plea  of  justification,  is  by  a  certificate  under  the 
Common  Law  Procedure  Act,  1854,  s.  25,  containing  the  substance 
and  effect  of  the  indictment  and  conviction,  but  omitting  the  formal 
parts.  Both  this  section,  however,  and  sect.  6  of  28  &  29  Vict.  c.  18, 
are  confined  to  convictions  for  felony  or  misdemeanour  on  indict- 
ment. Hence,  where  the  conviction  was  at  petty  sessions  only,  it 
was  decided,  in  Hartley  v.  Hlndmarsh  (L.  R.  1  C.  P.  553  ;  35  L.  J. 
M.  C.  255  ;  12  Jur.  N.  S.  502  ;  14  W.  R.  862  ;  13  L.  T.  795),  that 
either  the  record  itself  must  be  produced,  or  an  examined  copy  of  it. 
This  involves  the  trouble  and  expense  of  having  the  record  duly 
made  up  for  the  purpose.  (Per  Byles,  J.,  L.  R.  1  C.  P.  at  p.  556.) 
But  since  that  decision,  the  Prevention  of  Crimes  Act,  1871  (34  & 
35  Vict.  c.  112),  has  become  law  ;  and  though  the  rest  of  this  act 
applies  [*  574]  entirely  to  criminal  proceedings,  yet  sect.  18  contains 
the  words  "  in  any  legal  proceeding  whatever."  Hence  certificates 
under  that  section  are  now  received  without  objection  in  civil  as 
well  as  criminal  proceedings. 

The  defendant  must  be  careful,  however,  not  to  increase,  by  such 
cross-examination,  the  amount  of  damages  that  may  be  given  against 

(514) 


EVIDENCE    FOR    THE    DEFENDANT.  443 

him.  Thus,  where  the  libel  consisted  of  comments  in  a  newspaper 
on  a  criminal  trial,  in  which  the  plaintiff  was  acquitted,  and  the 
defendant's  counsel  put  to  the  plaintiff  a  scries  of  questions  tending 
to  show  that  ho  really  had  been  guilty  of  the  crime  with  which  he 
was  charged,  such  a  course  of  cross-examination  was  held  a  serious 
aggravation  of  the  libel.  (Risk  Allah  Bey  v.  Whitehurst,  18  L.  T. 
615.)  Note,  however,  that  Order  XXXVI.  r.  :'>7,  in  no  way  restricts 
cross-examination  ;  it  is  confined  to  evidence  called  by  the  defendant 
in  chief. 

Where  the  words  arc  actionable  only  because  they  were  spoken  of 
the  plaintiff  in  the  way  of  his  trade,  the  defendant  may  show  that 
such  trade  is  illegal  {limit  v.  Bell,  1  Bing.  l),  if  he  has  pleaded 
such  defence  ;  and  it  is  no  objection  to  such  evidence  that  it  also 
indirectly  proves  the  truth  of  the  defendant's  words.  {Manning  v. 
Clement,  7  Bing.  362,  368  ;  5  M.  &  P.  211.) 

Where  it  is  not  alleged  that  the  defendant  is  the  author  of  the 
libel,  he  may  give  evidence  to  show  that  he  published  it  innocently 
without  any  knowledge  of  its  contents,  as  where  a  porter  delivered 
a  sealed  packet.  (Bay  v.  Bream,  2  M.  &  Rob.  54.)  But  in  most 
cases  such  evidence  will  only  tend  to  mitigate  the  damages  ;  it  will 
not  be  a  defence  to  the  action.     (See  ante,  pp.  161,  433.) 

The  defendant  may  also  give  evidence  of  antecedent  conversa- 
tions and  transactions  or  other  circumstances  well  known  to  the 
bystanders,  which  show  that  the  words  were  not  used  in  their 
ordinary  signification.  Thus,  they  may  have  been  uttered  in  joke  ; 
or  the  preceding  part  of  the  conversation  may  limit  or  qualify  the 
words  sued  on.  But  the  defendant  cannot  give  in  evidence  some 
particular  transaction  which  he  had  in  his  mind  at  the  time  he  spoke, 
but  to  which  he  did  not  expressly  refer,  and  which  was  unknown  to 
the  person  addressed.  (Ilankinson  v.  Bilby,  16  M.  &  W.  442  ; 
2  C.  &  K.  440  ;  Martin  v.  Loei,  2  F.  &  F.  654*;  ante,  pp.  106—108.) 
For  the  question  which  the  jury  have  to  determine  is  not  "What 
did  the  defendant  intend  ?"  but  "What  would  a  reasonable  person 
have  understood  from  the  language  used  ?"  So,  too,  where  a  libel 
is  unambiguous  in  itself,  and  does  not  refer  to  any  other  doc- 
ument, the  defendant  cannot  use  any  other  [*575]  document 
for  the  purpose  of  explaining  awav  the  natural  meaning  of  the 
libel. 

The  defendant's  counsel  may  also  urge  that  the  occasion  of  publi- 
cation was  privileged.  (See  ante,  c.  VIII.  pp.  181 — 268.)  If  the 
facts  necessary  to  raise  this  defence  are  not  already  in  evidence, 
he  must  call  witnesses  to  prove  them.  Thus,  it  is  of  ten  necessary  to 
put  the  defendant  himself  in  the  box  to  state  the  facts  as  they  were 
presented  to  him  at  the  date  of  publication,  the  information  which  he 
received  and  on  which  he  acted,  and  all  surrounding  circumstances, 
lb'  will  also  state  that  he  acted  bond  fide,  and  under  a  sense  of  duty. 
But  there  is  danger  in  calling  the  defendant  in  such  a  case  :  he  will 
be  severely  cross-examined,  and  may  let  slip  some  observation  which 
will  be  seized  upon  as  evidence  of  malice.  It  is  better,  if  possible  by 
denying  the  fact  of  publication,  to  compel  the  plaintiff  to  call  those  to 
whom  the  defendant  wrote  or  spoke,  and  to  elicit  from  them,  in 

(515) 


444  PBACTICE    AND    EVIDENCE. 

cross-examination,  circumstances  which  show  that  the  occasion  was 
privileged.     Statements  made  to  the  defendant  behind  the  plaintiff's 

back,  and  acts  to  which  he  was  no  party,  are  admissible  in  evidence 
on  this  issue  to  show  the  state  of  the  defendant's  mind  at  the  moment 
when  he  spoke  or  wrote  the  words.  ( Cockayne  v.  Hodgkisson,  5  C. 
&  P.  543.) 

So  where  the  defence  is  that  the  libel  complained  of  isa  bond  fide 
comment  on  certain  facts,  the  defendant  is  clearly  entitled  to  prove 
those  facts,  unless  the  judge  rules  that  they  are  not  of  public  inter- 
est. The  ruling  of  Patterson,  J.,  in  R.  v.  Brigstock  (6  C.  &  P.  J  84), 
would  not  be  followed  in  these  days.  Of  well-known  historical 
facts  the  court  will  of  course  take  judicial  notice  ;  all  other  facts 
must  be  proved  strictly,  and  not  by  hearsay,  unless  plaintiff  will 
admit  them. 

But  if  a  publication  purports  to  be  a  report  of  a  trial,  it  will,  it 
seems,  be  assumed  in  favour  of  the  defendant  that  such  a  trial  really 
took  place,  unless  the  plaintiff  adduces  some  evidence  to  the  contrary. 
"  We  cannot  suppose,  without  proof,  that  the  occurrence  of  such  a 
trial  was  mere  invention,  or  that  newsapers  publish  reports  of  merely 
imaginary  trials."  [Per  Alderson,  B.,  inChalmers  v.  Payne,  5  Tyrw. 
769  ;  2  C.  M.  &  R.  159  ;  1  Gale,  69.) 

The  defendant  may  also  prove  a  justification.  The  attempt,  if 
unsuccessful,  will  aggravate  the  damages.  Strict  proof  must  be  given 
that  the  whole  charge  made  is  true  in  every  particular.  Books  are 
no  evidence  of  the  facts  stated  in  them.  (Darby  v.  Ouseley,  1  H. 
&  K  1  ;  25  L.  J.  Ex.  227  ;  2  Jur.  N".  S.  497  ;  Collier  v.  Simpson,  5 
C  &  P.  73.)  Sometimes  a  libel  contains  two  or  more  distinct  and 
severable  charges  against  the  plaintiff  ;  if  so,  it  will  tend  in  mitiga- 
[*576j  tion  if  the  defendant  can  prove  any  one  of  such  charges  true 
(see  ante,  p.  176)  ;  but  all  of  them  must  be  strictly  proved  to  entitle 
him  to  a  verdict.  Where,  however,  a  libel  conveys  a  general  charge, 
and  several  specific  instances  are  given  (as  they  must  be)  in  the  plea 
or  in  the  particulars  as  evidence  of  such  general  charge,  then  it  is 
enough  for  the  defendant  to  prove  any  two  or  three  of  these  specific 
instances  which  will  justify  the  libel  ;  he  is  not  bound  to  prove  the 
whole  of*  his  particulars.  (Per  Cockburn,  C.  J.,  in  Peg.  ]vos.  Lam- 
bri  v.  Labouchere,  14  Cox,  C.  C.  419.)  If  the  charge  made  against 
the  plaintiff  is  that  he  was  convicted  of  an  offence,  then  such  convic- 
tion may  be  proved  in  the  manner  stated,  ante,  p.  573.  (See  Alex- 
ander v.  North  Eastern  Railway  Co.,  6  B.  &  S.  340  ;  34  L.  J.  Q. 
B.  152;  13  W.  Pv.  651.)  Though  where  the  libel  consists  of  an 
incorrect  statement  of  the  plaintiff's  conviction  by  a  magistrate,  the 
plaintiff  may,  with  a  view  to  the  assessment  of  damages,  enter  into 
all  the  circumstances  which  led  to  the  conviction,  although  such  evi- 
dence tends  to  show  that  the  conviction  was  erroneous.  ( Gwynn  v. 
South,  Eastern  Railway  Co.,  18  L.  T.  738).  If,  however,  the  impu- 
tation is  that  the  plaintiff  has  committed  a  crime,  then  the  charge 
must  be  proved  as  strictly  as  on  an  indictment  for  the  same  offence. 
And  here,  the  fact  that  the  plaintiff  had  been  previously  tried  and 
acquitted,  or  convicted,  is  irrelevant  ;  and  the  record  of  the  crim- 
inal trial  is  not  admissible  in  evidence  either  way,  for  the  parties  are 

(516) 


EVIDENCE    FOR    THE    DEFENDANT.  445 

not  the  same.  {.Justice  v.  Gosling  and  others,  12  ('.  B.  39  ;  21  L. 
J.  ('.  P.  94  ;  England  v.  Bourke,  3  Esp.  80.) 

Where  no  justification  is  pleaded,  the  defendanl  can  give  n<>  evi- 
dence of  the  truth  of  his  words,  not  even  in  mitigation  of  damages. 
(/Smith  v.  Richardson,  Willes,  20.)  But  evidence  admissible  and 
pertinent  under  another  issue  cannot  be  excluded  merely  because  it 
happens  incidentally  to  prove  the  truth  of  the  libel.  {Manning  v. 
Clement,  7  Bing.  302,  368  ;  5  M.  P.  21  1)  Thus,  if  the  defendant 
lias  pleaded  privilege,  he  may  show  that  he  reasonably  a,n&bondfide 
believed  in  the  truth  of  the  charge  he  made,  and  it  is  no  objection 
that  the  grounds  of  his  belief  are  so  forcible  as  to  convince  every 
reasonable  man  of  the  plaintiff's  guilt.  (Huson  v.  Dale,  19  Mich. 
17.)  Where  the  plaintiff,  in  order  to  prove  malice,  has  given  in 
evidence  other  words  of  the  defendant  not  set  out  on  the  rec- 
ord, the  defendant  may  prove  the  truth  of  such  other  words,  for 
he  had  no  opportunity  of  pleading  a  justification.  (Stuart  v.  Lov- 
ell,  2  Stark.  93  ;  Warne  v.  Chad-well,  2  Stark.  457  ;  Collision  v. 
Loder,  B.  K  P.  10.) 

If  the  present  defendant  is  liable,  the  fact  that  some  one  else  is 
also  liable  is,  of  course,  no  defence.  The  plaintiff  may  at  his  option 
sue  one  or  all  in  the  same  or  in  different  actions.  And  the  fact  that 
[*  577]  such  other  actions  are  pending  is  not  admissible  in  evi- 
dence. (Creevy  v.  Carr,  7  C.  &  P.  64;  ante,  p.  310.)  Thus,  if 
an  author  be  sued  for  a  libel  he  has  composed,  it  is  no  defence  that 
the  publisher  has  been  already  sued,  and  heavy  damages  recovered 
against  him  in  another  action.  (Frescoe  v.  May,  2  F.  &  F.  123  ; 
Harrison  v.  Pearce,  1  F.  &  F.  507  ;  32  L.  T.  (Old  S.)  298  ;  the 
headnote  to  the  latter  case  does  not  state  the  full  force  of  the  ruling 
of  Martin,  B.)  So,  too,  that  others  have  previously  published  the 
same  charges  against  the  plaintiff,  and  have  not  been  sued,  is  no 
justification  for  the  defendant's  republication.  Still  less  is  it  any 
evidence  of  the  truth  of  such  charges.  (P.  v.  Newman,  1  E.  &  I>. 
268  ;  22  L.  J.  Q.  B.  150  ;  3  C.  &  K.  252  ;  Dears.  C.  C.  85  ;  17 
Jur.  017.)  It  is  wholly  immaterial  that  plaintiff  omitted  to  con- 
tradict or  complain  of  such  previous  publications.  (II.  v.  Holt, 
5  T.  R.  430  ;  Pankhurst  v.  Hamilton,  2  Times  L.  R.  682  ;  and  per 
Maule,  J.,  in  Ingram  v.  Pawson,  9  C  &  P.  333.)  If,  however,  the 
libel  purports  on  the  face  of  it  to  be  derived  from  a  certain  news- 
paper, the  defendant  may  prove  in  mitigation  of  damages  that  a 
paragraph  to  the  same  effect  had  appeared  in  that  newspaper. 
(Wyatt  v.  Gore,  1  Holt,  N.  P.  303  ;  see  also  ante,  p.  315.)  The 
defendant  may  not  give  evidence  that  there  w.°-s  a  rumour  current 
to  the  same  effect  as  the  words  he  spol<e.  (Ante,  p.  312.)  If  the 
defendant  relies  on  sect.  2  of  Lord  Campbell's  Act,  he  must,  as  a 
rule,  give  some  evidence  to  show  affirmatively  that  there  was  no 
gross  negligence.  (Per  Wills,  J.,  in  Peters  and  another  v.  Edward 
and  another,  3  Times  L.  R.  423  ;  and  see  ante,  p.  322.)  As  to 
other  evidence  in  mitigation  of  damages,  see  ante,  pp.  312 — 324. 
And  now  by  Order  XXXVI.  r.  3  7  : —  "  In  action  for  libel  or  slander, 
in  which  the  defendant  does  not  by  his  defence  assert  the  truth  ui' 
the  statement  complained  of,  the  defendant  shall  not  be  entitled  on 

(517) 


446  PRACTICE    AND    EVIDENCE. 

the  trial  to  give  evidence  in  chief,  with  a  view  to  mitigation  of 
damages,  as  t<>  the  circumstances  under  which  the  libel  or  slander 
was  published,  or  as  to  the  character  of  the  plaintiff,  without  the 
leave  of  the  judge,  unless  seven  days  at  least  before  the  trial  lie 
furnishes  particulars  to  the  plaintiff  of  the  matters  as  to  which  he 
intends  to  give  evidence."  This  rule  in  no  way  alters  the  law  laid 
down  in  Scott  v.  Sampson  (8  Q.  B.  D.  491  ;  51  L.  J.  Q.  B.  380  ;  30 
W.  R.  541  ;  40  L.  T.  412  ;  46  J.  P.  408),  save  oidy  that  it  relieves 
the  defendant  from  the  necessity  of  pleading  such  matters  in  his 
defence.  For  the  form  of  the  notice  under  the  rule,  see  Precedent, 
No.  68,  post,  p.  656. 

I*  M81  Withdrawing  a  Juror. 

Actions  of  defamation  are  often  compromised  before  the  judge 
comes  to  sum  up  the  evidence.  A  juror  is  often  withdrawn,  some- 
times at  the  suggestion  of  the  judge.  This  means  that  neither 
party  cares  for  the  case  to  proceed.  If  no  special  terms  are  agreed 
on,  the  effect  of  withdrawing  a  juror  is  that  the  action  is  at  an  end, 
that  no  fresh  action  can  be  brought  on  the  same  libel  or  slander,  and 
that  each  party  pays  his  own  costs.  (See  /Strauss  v.  Francis,  4  F. 
&  F.  939,  1107  ;  15  L.  T.  6V4  ;  Moscati  v.Bawson,  7  C.  &  P.  35, 
note  ;  Norbnm  v.  llilliam,  L.  R  5  C.  P.  129  ;  39  L.  J.  C.  P.  183  ; 
18  W.  R/602  ;  22  L.  T.  67.)  If  any  other  terms  be  agreed  on, 
they  should  be  indorsed  on  counsel's  briefs,  and  each  indorsement 
signed  by  the  leading  counsel  on  both  sides.  Counsel  has  full 
authority  to  make  such  a  compromise,  unless  expressly  forbidden  to 
do  so  by  the  client  at  the  time.  (Strauss  v.  Francis,  L.  R.  1  Q. 
B.  379  ;'35  L.  J.  Q.  B.  133  ;  12  Jur.  N.  S.  486  ;  14  W.  R  634  ;  14 
L.  T.  326  ;  Davis  v.  Davis,  13  Oh.  D.  861  ;  28  W.  R  345.)  The 
terms  of  such  a  compromise  will  be  strictly  enforced,  if  necessary, 
by  an  order  of  the  court.  (Riley  v.  Byrne,  2  B.  &  Ad.  779  ;  Tar- 
drew  v.  Brook,  5  B.  &  Ad.  880.)  If  after  such  a  compromise  the 
defendant  reiterates  the  libel,  the  judge  may  give  leave  for  the 
action  to  proceed.  (Thomas  v.  Exeter  Flying  Post  Co.,  18  Q.  B. 
D.  822  ;  56  L.  J.  Q.  B.  313  ;   56  L.  T.  361.) 

Summing -up. 

The  judge  now  sums  up  the  facts  of  the  case  to  the  jury,  and 
directs  them  as  to  the  law.  (See  sect.  22  of  Judicature  Act,  1875.) 
He  is  not  bound  to  state  to  the  jury,  as  matter  of  law,  whether  the 
publication  complained  of  be  a  libel  or  not.  (Baylis  v.  Baiorence, 
11  A.  &  E  920  ;  Ilearne  v.  Stowell,  12  A.  &  E.  719  ;  11  L.  J.  Q.  B. 
25  ;  4  P.  &  D.  696,)  The  proper  course  is  for  him  to  define  what 
is  a  libel  in  point  of  law,  and  to  leave  it  to  the  jury  to  say,  as  men 
of  ordinary  intelligence,  whether  the  publication  in  question  falls 
within  that  definition.  (Parmiter  v.  Coupland  and  another,  6  M. 
&  W.  105  ;  approved  in  Cox  v.  Bee,  L.  R.  4  Ex.  284  ;  38  L.  J.  Ex. 
219  ;  Grant  v.  Yates,  2  Times  L.  R.  368.)  The  jury  are  bound  to 
take  the  judge's  definition  of  a  libel,    and  decide  in   accordance 

(518) 


costs.  447 

therewith  {Levi  v.  Milne,  4  Bing.  L95  ;  12  Moore,  418)  ;  though  the 
question  for  them,  "  Libel  or  no  Libel,"  is  not  precisely  the  same  as 
"  What  is  the  legal  definition  of  an  actionable  libel  ?"  (Per  Barry, 
J.,  in  Stannm  v.  tinlcvy,  It.  R.  8C.  L.  264.)  In  a  proper  case  the 
jury  [*  57.9]  should  also  he  reminded  that  the  question  for  them  is 
not  "did  the  defendant  intend  to  injure  the  plaintiff?"  but,  "  Has 
he  in  fact  injured  the  plaintiff's  reputation  ?" 

Where  other  libels,  &c.,  have  been  given  in  evidence  to  prove 
malice,  the  judge  should  caution  the  jury  not  to  give  any  damages 
in  respect  of  them.  (Pearson  v.  Lemaitre,  5  M.  &  Gr.  700.)  But 
the  omission  of  the  judge  to  give  such  caution  is  not  a  misdirection. 
(Darby  v.  Ouseley,  1  H.  &  N.  1  ;  25  L.  J.  Ex.  229.) 

Verdict. 

The  jury  now  consider  their  verdict.  They  should  look  at  the 
whole  of  the  publication  to  see  whether  it  is  calculated  to  injure  the 
plaintiff's  character,  not  study  detached  and  isolated  sentences. 
The  conclusion  may  modify  the  commencement,  and  if  so,  "  the 
bane  and  antidote  must  be  taken  together."  (Per  Alderson,  B.,  in 
Chalmers  v.  Payne,  2  C.  M.  &  R.  159  ;  see  also  Hunt  v.  Algar  and 
others,  6  C.  &.  P.  245  ;  P.  v.  Lambert  and  Perry,  2  Camp.  39S.) 

Where  the  words  are  actionable  per  se,  the  amount  of  damages  is 
entirely  a  matter  for  the  jury.  They  are  not  confined  to  the  pecu- 
niary loss  actually  sustained  by  the  plaintiff.  (Ante,  p.  295.)  They 
may  consider  the' libel  itself,  the  mode  and  extent  of  publication, 
and  the  malice  evinced  by  the  defendant.  Also,  in  an  action  against 
a  newspaper,  they  may  have  regard  to  the  gross  negligence  shown 
by  the  editor  in  allowing  the  libel  to  appear  in  print.  (Smith  v. 
Harrison,  1  F.  &  F.  565.)  The  jury  must  assess  the  damages  once 
for  all,  as  no  fresh  action  can  be  brought  for  any  subsequent  dam- 
age. (Fitter  v.  Veal,  12  Mod.  542  ;  B.  N.  P.  7  ;  Grey ory  and 
another  v.  Williams,  l.C.  &  K.  568  ;  ante,  pp.  295,  306.)  And  in 
assessing  the  damages,  the  jury  should  not  regard  at  all  the  question 
of  costs..  (Poole  v.  Whitcomb,  12  C.  B.  N.  S.  770  ;  Levi  v.  Milne, 
4  Bing.  915  ;  12  Moore,  418.)  But  they  can  not  find  a  verdict  for 
the  plaintiff  without  awarding  him  some  damages.  (Per  Lord 
Coleridge,  C.  J.,  in  Wisdom  v.  Brown,  1  Times,  L.  R.  412.) 

Costs. 

There  is  no  longer  any  need  to  ask  for  a  certificate  for  the  gen- 
eral costs  of  the  suit.  The  successful  party  now  gets  his  costs  as  of 
right,  unless  the  judge  deprives  him  of  them  for  good  cause. 
(Order  LXV.  r.  1,  ante,  p.  365.)  Thus  if  there  be  a  verdict  for  the 
plaintiff  for  nominal  damages  only,  his  counsel  should  say  nothing 
about  costs  ;  it  is  the  duty"  of  the  defendant's  counsel  to  ask  the 
judge  to  interfere.  But  it  is  otherwise  with  special  costs,  such  as 
costs  of  a  special  jury,  of  a  commission  to  take  evidence  abroad,  or 
of  photographic  copies  of  [*  580]  the  libel  :  the  party  who  has 
required"  these    will   have   to    pay  for  them  unless  he  obtain    an 

1 519 1 


448  PRACTICE    AND    EVIDENCE. 

order  for  their  allowance  on  taxation  before  judgment  is  entered. 
(Ante,  p.  308.)  M  a  married  woman  having  general  separate  estate 
fail  in' an  action  of  libel  or  slander,  she  may  be  condemned  in  costs, 
although  her  husband  was  joined  with  her  as  a  co-plaintiff  or  a  co- 
defendant.  {Newton  and  wife,  v.  Boodle  and  others,  4  C.  B.  359  ; 
18  L.  J.  C.  P.  73  ;  Morris  v.  Ireeman  and  wife,  3  P.  1).  65  ;  47  L. 
J  P*  D.  &  A.  7!)  ;  27  W.  R.  62  ;  39  L.  T.  125  ;  and  see  the  remarks 
of  Jessel,  M.  R,  in  Besant  v.  Wood,  12  Ch.  D.  630  ;  40  L.  T.  453  ; 
and  sects,  land  13  of  the  Married  Women's  Property  Act,  1882, 
ante,  pp.  396,  401.) 

If  there  is  any  thought  of  further  proceedings,  the  unsuccessful 
party  should  ask  the  judge  to  stay  execution  ;  which  the  judge  will 
do  if  he  thinks  there  is  any  ground  for  an  application  to  the  court. 
The  usual  order  is  that  execution  be  stayed  for  eight  days,   and   if 

within  that  time  notice  of  motion  be   served  and  £ brought 

into  court,  that  execution  be  further  stayed  till  the  motion  be 
disposed  of. 

Proceedings  after  Judgment. 

When  judgment  has  been  entered  after  a  trial  with  a  jury,  the 
unsuccessful  party  must  either  move  to  Divisional  Court  for  a 
new  trial  under  Order  XXXIX.,  notice  of  which  must  be  served 
within  the  time  stated  in  rule  4,  and  entered  before  the  day 
named  for  making  the  motion  ;  or  he  may  move  the  Court  of 
Appeal  to  set  aside  the  judgment  on  the  ground  that  on  the  verdict 
as  entered,  the  judgment  directed  was  wrong  (Order  XL.  r.  4),  or 
upon  exceptions  annexed  to  the  record,  in  accordance  with  sect.  22 
of  the  Judicature  Act,  1875.  The  Divisional  Court  has  full  power 
under  Order  XL.  r.  10,  upon  an  application  for  a  new  trial,  to  set 
aside  the  judgment  entered  and  enter  final  judgment  for  the  party 
unsuccessful  at  the  trial,  if  they  are  of  opinion  that  the  findings 
and  the  judgment  at  the  trial  can  not  stand,  and  if  they  have  before 
them  all' the  materials  necessary  for  finally  determining  the  ques- 
tions in  dispute.  {Hamilton  &  Co.  v.  Johnson  &  Co.,  (C.  A.)  5  Q. 
B.  D.  263  ;  49  L.  J.  Q.  B.  155  ;  28  W.  R.  879  ;  41  L.  T.  461.)  So, 
too,  if  the  unsuccessful  party  moves  for  judgment  in  the  Court  of 
Appeal,  and  the  court  is  dissatisfied  with  the  findings  as  to  any  matter 
of  fact,  it  may  set  aside  the  verdict  and  judgment  entered,  and 
direct  that  a  new  trial  shall  be  had  (Order  LVIII.  r.  5),  and  vice 
versa  {Miller  v.  Toulmin,  (C.  A.  )  17  Q.  B.  D.  603  ;  55  L.  J.  Q.  B. 
445  ;  34  W.  R.  695). 

It  is  only  when  the  appellant  contends  that  the  findings  of  the 
jnry  have  not  been  properly  entered,  or  that,  if  properly  entered, 
still  the  [*58l]  judgment  directed  thereon  is  wrong,  that  he  must 
move  the  Court'of  Appeal  in  the  first  instance.  If  he  complains  of 
the  verdict  as  recorded,  then,  although  the  judge  directed  such  ver- 
dict, he  must  apply  to  the  Divisional  Court  within  the  time  allowed 
for  a  new  trial.  [Yetts  and  another  v.  Foster,  (C.  A.)  3  C.  P.  D. 
437  ;  26  W.  R.  745  ;  38  L.  T.  742.)  Thus,  if  the  judge  is  asked  to 
direct  a  verdict  for  the   defendant,  on  the  ground  that  there  is  no 

(520 1 


NEW    TRIAL.  440 

evidence  to  go  to  the  jury  in  support  of  the  plaintiff's  case,  then, 
whether  he  grants  or  refuses  this  application,  the  only  course  by 
which  bis  decision  can  be  reviewed  is  by  motion  for  a  new  trial  in 

the  Divisional  Court  ;  for  the  Court  of  Appeal,  as  :i  rule,  will  nol  in 
the  first  instance  review  the  finding  of  a  jury.  {Dames  and  others, 
v.  Felix  and  others,  (C.  A.)  4  Ex.  IX  32  ;  t8  L.  J.  Ex.  3  •  21  W.  R. 
108  ;  30  L.  T.  322  ;  Etty  v.  Wilson,  (C.  A.)  3  Ex.  I).  350  ;  47  L. 
.1.  Ex.  664  ;  30  L.  T.  83  ;  Clarke  v.  Midland  Railway  Co.,  14  L. 
T.  131.)  Hence,  if  the  unsuccessful  party  moves  both  for  :i  new- 
trial,  and  also  for  judgmenl  on  the  findings  as  entered,  the  Divisional 
Court  will  hear  both  motions.      (Order  XL.  r.  5.) 

Whenever  the  action  is  tried  with  a  jury,  even  though  ii  was 
brought  in  the  Chancery  Division,  any  motion  for  a  new  trial  must 
be  made  to  a  Divisional  Court  of  the  Queen's  Bench  Division. 
(Order  XXXIX.  r.  1.)  Butin  all  eases  where  the  trial  is  by  a  judge 
without  a  jury,  any  application  for  a  new  trial  must  be  made  direct 
to  the  Court  of  Appeal  (ib.),  which  may  either  grant  a  new  trial  or 
order  judgment  to  be  entered  for  the  appellant,  as  justice  may 
require,  whatever  the  terms  of  the  notice  of  motion  may  be. 
(Order  LYIIP.  r.  4  ;  Jones  v.  Hough,  (C.  A)  5  Ex.  D.  115,  125  ; 
49  L.  J.  C.  P.  211  ;  42  L.  T.  108  ;  Wadded  v.  Blockcy,  (C.  A.)  10 
Ch.  D.  416  ;   27  W.  R.  233  ;   40  L.  T.  280.) 

JVeic    Trial. 

An  application  for  a  new  trial  may  be  made  on  the  ground  that 
the  verdict  is  against  the  weight  of  evidence,  that  the  damages  are 
excessive  or  inadequate,  or  on  the  ground  of  misdirection  or  surprise. 
That  no  notice  of  trial  was  given,  or  that  the  jury  misbehaved,  may 
also  be  ground  for  a  new  trial. 

But  a  new  trial  will  not  be  granted  on  the  ground  of  misdh-ection 
or  improper  admission  or  rejection  of  evidence,  if  the  party  showing 
cause  against  it  can  satisfy  the  court  that  no  substantial  wrong  or 
miscarriage  has  been  thereby  occasioned.  (Order  XXXIX.  r.  6  ; 
Anthony  v.  Halstead,  37  L.  T.  433  ;  Faund  v.  Wallace,  35  L.  T. 
361.)  And  then  the  court  may  grant  a  new  trial  as  to  so  much  of 
the  matter  only  as  the  miscarriage  affects,  without  interfering  with 
the  decision  [*582]  upon  any  other  question.  (Marsh  v.  Isaacs,  45 
L.  J.  C.  P.  505.)  So,  too,  the  court  may  grant  a  new  trial  as  against 
one  defendant  without  granting  it  as  to  all  ;  though  notice  of  motion 
must  be  served  on  all.  (Price  v.  Harris,  10  Bincr.  331  ;  Parnell 
v.  O.  W.  Ry.  Co.  and  Harris,  (C.  A.)  1  Q.  B.  D/636  ;  45  L.  J.  Q. 
B.  6S7  ;   24  W.  R.  720,  909  ;  35  L.  T.  605.) 

The  question  of  libel  or  no  libel  is  pre-eminently  one  for  a  jury  ; 
the  court  will  rarely  interfere  to  set  aside  a  verdict  or  grant  a  new 
trial  on  the  ground  that  the  verdict  was  against  the  weight  of  evi- 
dence ;  especially  where  the  question  left  to  the  jury  was  whether 
the  matter  complained  of  was  or  was  not  fair  comment  on  the  acts 
of  a  public  man.  (Odr/er  v.  Mortimer,  28  L.  T.  472.)  And  when- 
ever the  words  are  fairly  susceptible  both  of  an  innocent  and  of  an 
actionable  meaning,  the  finding  of  the  jury  is  final  ;  whichever  con- 
29  lib.  &  slan.  (521) 


450  PRACTICK   AND    EVIDENCE. 

struction  they  niay  have  placed  upon  the  words  will  be  upheld. 
(Burgess  v.  Bracher  (1724),  8  Mod.  240  ;  2  Ld.  Raym.  1366;  1 
Stra.  5'.)4  ;  Walter  v.  Beaver,  and  Naden  v.  Micocke  (1684),  3  Lev. 
160  ;  SirT.  Jones,  235  ;  2  Ventr.  172  ;  3  Salk.  325  ;  Grant  v.  Yates, 
2  Times  L.  R.  368.)  "The  court  never,  or.  very  rarely,  grunts  new 
trials  in  actions  for  words."  (Per  Holt,  C.  J.,  Anon.  (1690),  2  Salk. 
644.) 

A  new  trial  will,  however,  be  granted  when  the  matter  complained 
of  is  clearly  libellous,  and  there  is  no  question  as  to  the  fact  of  pub- 
lication, or  as  to  its  application  to  the  plaintiff,  and  yet  the  jury 
have  perversely  found  a  verdict  for  the  defendant,  in  spite  of  the 
summing-up  of  the  learned  judge.*  (Levi  v.  Milne,  4  Bing.  195  ; 
ante,  p.  131  ;  Hakewell  v.  Ingram,  2  C.  L.  R.  1397.)  But  unless 
the  jury  are  manifestly  wrong,  unless  the  court  can  say  with  cer- 
tainty that  there  has  been  a  miscarriage  of  justice,  no  new  trial  will 
be  granted.  (Per  Tindal,  C.  J.,  in  Broome  v.  Gosden,  1  C.  B.  731.) 
If  the  judge  directs  the  jury  that  the  publication  is  in  law  a  libel, 
and  the  court  above  hold  that  it  is  not,  a  new  trial  will  be  granted 
on  the  ground  of  misdirection.  (BTearne  v.  Stowell,  12  A.  &  E. 
719  ;   11  L.  J.  Q.  B.  25  ;  4  P.  &  D.  696.) 

The  question  whether  an  apology  was  or  was  not  sufficient  is 
peculiarly  a  question  for  the  jury,  and,  their  decision  cannot  be 
reviewed  or  set  aside  by  the  court.  (Bisk  Allah  Beg  v.  Johnstone, 
18  L.  T.  620.) 

So  on  any  other  issue,  a  new  trial  will  not  be  granted  on  the  ground 
that  the  verdict  was  against  the  weight  of  evidence  if  the  verdict  was 
one  which  reasonable  men  could  have  found.  (  Webster  v.  Friedeberg, 
(C.  A.)  17  Q.  B.  D.  736  ;  55  L.  J.  Q.  B.  493  ;  34  W.  R.  728  ;  55 
L.  T.  49,  295.)  A  new  trial  will  not  be  granted  on  the  ground  that 
the  jury  expressed  an  opinion  during  the  judge's  summing-up  incon- 
[*583j  sistent  with  their  subsequent  verdict  (Napier  v.  Daniel  and 
another,  3  Bing.  N.  C.  77  ;  3  Scott,  417)  ;  nor  on  the  ground  that 
either  judge  or  jury  prematurely  expressed  a  strong  opinion  as  to 
the  case  either  way.  (Llogd  v.  Jones,  7  B.  &  S.  475.)  It  would  be 
otherwise  if  a  juror  before  being  sworn  had  expressed  a  determina- 
tion to  give  a  verdict  in  favour  of  the  plaintiff.  (Bamadge  v.  Ryan, 
9  Bing.  333  ;  2  Moo.  &  Sc.  421.) 

In  actions  of  defamation  the  court  very  rarely  grants  a  new  trial 
on  the  ground  that  the  damages  are  either  too  small  or  too  great. 
"The  assessment  of  damages  is  peculiarly  the  province  of  the  jury 
in  an  action  for  libel."  (Davis  &  Sons  v.  Shepstone,  11  App.  Cas. 
187  ;  55  L.  J.  P.  C.  51  ;  34  W.  R.  722  ;  55  L.  T.  1  ;  50  J.  P.  709  ; 
Maskelgne  v.  Bishop,  Times  for  December  3rd,  1885.)  Still  there 
is  no  inflexible  rule  on  the  subject.  Scroggs,  J.,  indeed,  contended, 
in  Lord  Townshend  v.  Br.  Hughes  (2  Mod.  150),  that  the  court  had 
no  power  to  order  a  new  trial  on  the  ground  that  the  damages 
(£4,000)  were  excessive  ;  but  Atkins,  J.,  was  of  the  contrary  opinion, 
and  gave  an  instance  in  which  the  Court  of  Queen's  Bench  had  done 
so.  The  court,  however,  declined  to  exercise  their  power  both  in 
that  case  and  in  Highmore  v.  Earl  and  Countess  of  Harrington  (3 
C.  B.  N.  S.  142),  where  £750  damages  were  awarded.     A  new  trial 

1 522)" 


NEW    TRIAL.  451 

will  only  be  granted  where  the  amount  of  damages  is  so  large  as  to 
satisfy  the  court  that  the  jury  acted  perversely  and  with  partiality, 
or  grossly  misconceived  the  case  on  a  matter  of  principle.  When- 
ever there  is  any  evidence  of  malice,  the  jury  are  entitled  to  give 
vindictive  damages.  In  a  cast'  where  the  plaintiff  is  entitled  to  sub- 
stantial damages,  and  a  verdict  is  given  for  the  plaintiff,  which  can- 
not be  impeached  except  on  the  ground  that  the  damages  are 
excessive,  the  court  has  power  to  refuse  a  new  trial,  on  the  plaintiff 
alone,  and  without  the  defendant,  consenting  to  the  damages  being 
reduced  to  such  an  amount  as  the  court  would  consider  not  excessive 
had  they  been  given  by  the  jury.  (Belt  v.  Lawes,  (('.  A.)  li'  Q.  B. 
D.-356  ;  53  L.  J.  Q.  B.  249  ;'  32  \V.  11.  607  ;  50  L.  T.  441.) 

So,  too,  there  is  no  inexorable  rule  of  practice  which  precludes 
the  court  from  granting  a  new  trial  on  account  of  the  smallness  of 
damages.  In  Kelly  v.  Sherlock  (L.  R.  1.  Q.  B.  686,  697  ;  35  L.  J. 
Q.  B.209  ;  12  Jur.  N.  S.  937),  a  rule  nisi  was  granted  on  that  ground, 
though  it  was  discharged  on  the  argument.  There  seems  to  be  no 
case  reported  in  which  a  rule  for  a  new  trial  has  been  made  absolute 
on  this  ground  in  an  action  of  libel  ;  but  in  an  action  of  slander  a 
new  trial  was  granted,  where  the  smallness  of  the  amount  recovered 
(l-4<7.)  showed" that  the  jury  had  made  an  improper  compromise, 
[*584]  instead  of  deciding  the  issues  submitted  to  them.  (Falvey  v. 
Stanford,  L.  R.  10  Q.  B.  54  ;  44  L.  J.  Q.  B.  7  ;  23  W.  R.  162  ;  31 
L.  T.  677.)  See,  however,  Forsdike  and  wife  v.  Stone  (L.  R.  3  C. 
P.  607  ;  37  L.  J.  C  P.  301  ;  16  W.  R.  976  ;  18  L.  T.  722),  and 
Kendall  v.  Hayward  (5  Bing.  N.  C.  424),  which  cases  lay  down  the 
rule  that  where  there  has  been  no  misconduct  on  the  part  of  the 
jury,  no  error  in  the  calculation  of  figures,  and  no  mistake  in  law  on 
the  part  of  the  judge,  a  new  trial  will  not  be  granted.  That  the 
jury  intended  their  verdict  to  carry  costs,  but  have  returned  an 
amount  insufficient  in  law  to  do  so,  never  was  a  ground  for  granting 
a  new  trial.  (Mears  v.  Griffin,  1  M.  &  Gr.  796  ;  2  Scott,  N.  R.  15  ; 
Kilmore  v.  Abdoolah,  27  L.  J.  Ex.  307  ;  Forsdike  and  wife  v. 
Stone,  supra.) 

There  is  no  necessary  inconsistency  in  a  jury  finding  that  a  libel 
was  written  maliciously,  and  yet  awarding  only  a  farthing  damages  ; 
and  such  a  verdict  will  not  be  set  aside.  ( Oooke  v.  Brcgden.  cC*  Co., 
1  Times  L.  R.  497.) 

If  a  new  trial  be  moved  for  on  the  ground  of  surprise,  the  absence 
of  a  material  witness  at  the  trial,  &c,  there  must  be  an  affidavit 
setting  out  the  facts.  "Surprise  is  a  matter  extrinsic  to  the  record 
and  the  judge's  notes,  and  consequently  can  only  be  made  to  appear 
by  affidavit";  and  here  wTe  have  no  affidavit  of  surprise,  in  the  sense 
required  by  the  practice  of  the  court."  (Per  Maule,  J.,  in  Hoare  v. 
Silverlock' (No.  2),  (1850),  9  C.  B.  22.) 

The  judge's  note  is  decisive  as  to  the  evidence  taken  in  the  court 
below  ;  but  either  party  may  read  a  shorthand-writer's  note,  to 
supplement,  though  not  to  overrule,  the  judge's  note.  (Laming  v. 
Gee,  (C.  A.)  28  W.  R.  217.) 

If  a  new  trial  be  ordered,  the  costs  of  the  first  trial  are  in  the 
discretion  of  the  judge  who  tries  the  case  the  second  time  ;  if  he 

(523) 


452  PRACTICE    AM)    KVlliKN;  ::. 

makes  no  order,  they  follow  the  event.  (Creen  v.  Wright,  2  C.  P. 
I).  354  ;  46  L.  J.  C.  P.  4l'7  ;  25  W.  R.  502  ;  36  L.  T.  355  ;  Field  v. 
•,  A.  A'y.  Co.,  3  Ex.  I).  261  ;  26  W.  R.  817  ;  39  L.  T.  80  ;  Harris 
v.  Petherick,  (('.  A.)  4  Q.  B.  D.  Oil  ;  48  L.  J.  Q.  B.  521  ;  28  W.  R. 

11  ;   41  L.  T.  24(3.) 

County    Court  Proceedings. 

No  action  of  libel  or  slander  can  be  commenced  in  the  County 
Court  (9  &  20  Vict.  c.  95,  s.  58),  except  by  consent  (19  &  20  Vict. 
C.  108,  s.  28).  Whether  the  word  ".slander"  includes  "slander  of 
title"  may  be  doubted.  In  cases  of  a  trifling  nature,  it  may  be 
desirable  that  both  parties  should  consent  to  such  a  course,  especially 
1*585]  if  all  the  witnesses  reside  in  a  town  where  a  County  Court 
is  held.  The  parties  or  their  respective  solicitors  must  in  that  case 
sign  a  memorandum  of  consent,  which  must  be  filed  ;  and  thereupon 
a  plaint  will  be  entered  and  a  summons  issued,  and  all  further  pro- 
ceedings will  be  taken  as  in  an  ordinary  County  Court  case. 
(County  Court  Ord.  V.  r.  2.) 

But  an  action  of  libel  or  slander,  whatever  the  amount  of  damages 
claimed,  may  be  transferred  to  the  County  Court,  under  sect.  10  of 
the  30  and  31  Viet.  c.  142,  ante,  p.  526.  The  defendant  may  apply 
to  a  master  at  chambers  for  an  order  under  this  section  at  any  stage 
of  the  proceedings. 

If  an  order  for  transfer  is  made,  the  plaintiff  must  lodge  the  writ 
and  other  proceedings,  and  the  order  remitting  the  action,  with  the 
registrar  of  the  County  Court.  Until  this  is  done,  the  action  remains 
in  the  Superior  Court,  which  consequently  has  jurisdiction  to  vary 
the  order.  (Welply  v.  Buhl,  (C.  A.)  3  Q.  B.  D.  80,  253  ;  47  L.  J. 
Q.  B.  151  ;  26  W.  R.  300  ;  38  L.  T.  115.)  If  the  plaintiff  omit  to 
lodge  the  order  of  transfer  within  a  reasonable  time  after  it  is  made, 
the~Vlefendant  can  apply  at  chambers  for  an  order  dismissing  the 
action  for  want  of  prosecution.  As  soon  as  the  necessary  docu- 
ments are  filed,  the  action  becomes  a  County  Court  cause,  as  com* 
pletely  as  if  it  had  been  duly  commenced  therein.  (Moody  v.  Stew- 
ard, L.  R.  6  Ex.  35  ;  40  L.  J".  Ex.  25  ;  19  W.  R.  161  ;  23  L.  T.  465.) 
The  County  Court  judge  is  bound  to  assume  jurisdiction  ;  he  cannot 
inquire  into  the  circumstances  under  which  the  order  was  made. 
(Blades  v.  Lawrence,  L.  R.  9  Q.  B.  374  ;  43  L.  J.  Q.  B.  133  ;  22 
W.  R.  643  ;   30  L.  T.  378.) 

The  plaintiff  is  required  by  County  Court,  order  XXXIII.  r.  1,  to 
lodcre  with  the  registrar  not  only  the  writ  and  the  order  remitting 
the  action,  or  a  duplicate  thereof,  and  a  copy  or  copies  of  any  affi- 
davit or  affidavits  on  which  the  order  was  made,  but  also  a  state- 
ment of  the  names  and  addresses  of  the  several  parties  to  the  action, 
and  their  solicitors,  if  any,  and  a  concise  statement  of  the  particulars 
of  claim,  such  as  would  be  required  upon  entering  a  plaint,  signed 
by  the  plaintiff  or  his  solicitor  ;  and  the  registrar  shall  thereupon 
enter  the  action  for  trial,  and  give  notice  to  the  parties  of  the  day 
appointed  for  such  trial,  by  post  or  otherwise,  ten  clear  days  before 
such  day,  and  shall  annex"  to  the  notice  to  the  defendant  a  copy  of 

(521) 


COUNTY  COURT  PROCEEDINGS.  153 

the  particulars.  For  a  form  of  such  statemenl  of  the  plaintiff's  par- 
ticulars, sec  Precedent  No.  88,  post,  p.  670.  For  a  form  of  the 
Notice  of  Trial  sent  to  the  defendant  by  the  registrar,  sec  Prece- 
dent No.  89,  jpost,  p.  671.  The  registrar  shall  forthwith  indorse  on 
the  order  or  duplicate  thereof  the  [*  586]  date  on  which  the  same 
was  lodged,  and  file  the  same,  and  the  action  shall  proceed  in  all 
things  as  if  it  were  an  ordinary  action  in  the  County  Court. 
(County  Court  Ord.  XXXIII.  r.  2.) 

The  defendant  upon  being  served  with  such  a  notice  of  trial  shall 
proceed  in  all  things  in  the  same  way  as  if  the  action  had  been 
brought  in  the  County  Court,  and  the  notice  so  served  upon  him 
was  an  ordinary  summons.      (County  Court  Ord.  XXXIII.  r.  '■'■.) 

Thus  he  may,  five  clear  days  at  least  before  the  day  named  in 
such  notice  of  trial,  pay  money  into  court,  either  generally  or  under 
Lord  Campbell's  Act,  paying  a  court  Ice  of  is.  in  the  6  on  the 
amount  paid  in.  (County  Court  Ord.  IX.  rr.  11,  12,  13.)  Or  he 
may  set  up  a  counterclaim  (County  Court  Ord.  X.  rr.  •_',  II),  or 
plead  the  Statute  of  Limitations  (ib.  r.  14),  or  any  other  special 
defence,  by  sending  in  to  the  registrar  a  concise  statement  of  the 
grounds  of  such  special  defence  five  clear  days  at  least  before  the 
day  named  for  trial.  (See  Precedent,  No.  90,y><>.<  p.  (371.)  If  the 
defendant  omit  to  send  such  statement,  he  will  not  be  allowed  to 
avail  himself  of  the  defence,  unless  the  plaintiff  consents  thereto; 
but  the  judge  will  in  a  proper  case  adjourn  the  trial  of  the  action  to 
enable  the  defendant  to  give  such  notice.  (County  Court  Ord.  X. 
r.  10.)  So,  too,  if  the  defendant  intends  to  avail  himself  of  the  pro- 
visions of  sects.  1  and  2  of  6  and  7  Vict.  c.  96,  he  must  give  notice 
in  writing  of  such  intention,  signed  by  himself  or  his  solicitor,  to 
the  registrar  five  clear  days  before  the  day  appointed  for  the  trial 
of  the  action.  (County  Court  Ord.  XXXIII.  r.  4.)  Such  notice 
should  be  in  form  No.* 91,  post,  p.  672,  if  under  sect.  1  of  Lord 
Campbell's  Act  ;  in  form  No.  92,  post,  p.  672,  if  under  sect.  2.  And 
see  County  Court  Ord.  IX.  r  13,  as  to  the  necessary  payment  into 
court. 

Where  in  any-action  for  libel  or  slander  the  defendant  relies  as 
a  defence  upon* the  fact  that  the  libel  or  slander  is  true,  he  shall  in 
his  statement  set  forth  that  the  libel  or  slander  complained  of  is 
true  in  substance.  (County  Court  Ord.  X.  r  16.)  Such  statement 
should  be  in  form  No.  90,  post,  p.  071.  Where  in  any  action  of  libel 
or  slander  the  defendant  does  not  rely  as  a  defence  upon  the  tact 
that  the  libel  or  slander  is  true,  but  relies  in  mitigation  of  damages 
on  the  circumstances  under  which  the  libel  or  slander  was  pub- 
lished, or  the  character  of  the  plaintiff,  he  must  in  his  statement 
give  particulars  of  the  matters  relating  thereto  as  to  which  he 
intends  to  give  evidence.     (Ib.  r.  17.) 

Interrogatories  may  be  administered  in  the  County  Court  by  leave 
of  the  registrar.  (County  Court  Ord.  XVI.  r.  1.)  *  Any  objection 
to  answer  must  be  taken  in  the  affidavit  in  answer.  Discovery  and 
[*  587]  inspection  of  documents  may  also  be  obtained  a--  in  the 
Superior  Court. 

The  action  may  at  the  instance  of  either  party  be  tried  by  a  jury 

(525) 


45-1  PRACTICE    AND    EVIDENCE. 

of  five  (9  &  10  Vict.  c.  05,  s.  7:3),  upon  demand  being  made  in  writ- 
ing to  the  registrar  four  clear  days  before  trial.  (County  Court 
Ord.  XXII.  r.  1.)  In  cases  where  no  demand  for  a  jury  has  been 
so  made,  but  at  the  trial  both  parties  desire  one,  the  judge  may 
adjourn  the  trial  upon  terms  in  order  that  notice  for  a  jury  may  be 
given.  (County  Court  Ord.  XXII.  r.  ±)  It  is  always  desirable  to 
have  a  jury  in  an  action  of  libel  or  slander. 

The  trial  takes  place  in  all  respects  as  in  an  ordinary  County 
Court  cause  ;  save  that  if  any  pleadings  were  delivered  in  the  action 
before  the  order  was  made  remitting  it  to  the  County  Court,  the 
judge  must  not  disregard  them.  Thus,  if  a  plaintiff  has  shaped  his 
action  differently  on  his  statement  of  claim  and  on  his  writ,  the  judge 
must  look  rather  to  the  statement  of  claim  than  to  the  writ  (.Tohnson 
v.  Palmer,  4  C.  P.  D.  258  ;  27  W.  R.  041)  ;  for  the  indorsement  on  a 
writ  is  superseded  by  a  statement  of  claim,  except  as  to  the  amount 
claimed  in  the  action.  [Large  v.  Large,  Weekly  Notes,  1877,  p. 
108  ;  Ord.  XX.  r.  4.)  Great  care  must  be  taken  to  ask  the  judge 
before  delivering  judgment  to  make  a  note  of  any  point  of  law  on 
which  either  party  relies.  (RJwdes  v.  LAverpool  Lnvestment  Co.,  4 
C.  P.  D.  425  ;  Pierpoint  v.  Cartwrujht,  5  C.  P.  D.  139  ;  28  W.  R. 
583  ;  42  L.  T.  295  ;  Seymour  v.  Coulson,  (C.  A.)  28  W.  R.  064.) 

Judgment  is  entered  and  all  subsequent  proceedings  taken  as  in  an 
ordinary  County  Court  action.  Any  motion  for  a  new  trial  must  be 
made  to  the  judge  in  the  County  Court  (County  Court  Ord.  XXXI.)  ; 
any  appeal  must  be  had  in  accordance  with  the  provisions  of  the 
Rules  of  the  Supreme  Court,  December  1885,  made  under  the 
Supreme  Court  of  Judicature  Act,  1884.  (Ord.  LIX.  rr.  9—17  ; 
County  Court  Ord.  XXXII.  ;  and  see  P.  v.  Kettle,  Brown  v.  Dorse 
17  Q.  B.  D.  761  ;  55  L.  J.  Q.  B.  470  ;  34  W.  R.  776  ;  54  L.  T.  875.) 

The  costs  will  follow  the  event,  unless  the  judge  at  the  trial  make 
any  order  to  the  contrary.  County  Courts  Act,  1846,  9&  10  Vict, 
c  95,  s.  88.)  In  taxing  the  costs  incurred  in  the  High. Court  of 
Justice  previous  to  the  transmission  of  the  action  to  the  County  Court 
under  sect.  10  of  the  County  Courts  Act,  1867,  the  registrar  shall 
tax  the  same  according  to  the  scale  of  costs  and  fees  in  use  in  such 
High  Court  of  Justice.  (County  Court  Ord.  L.  r.  1.)  The  costs 
subsequent  to  the  order  remitting  the  action  will  be  taxed  according 
to  the  scale  in  use  in  the  County  Courts,  by  the  express  words  of 
sect.  10  of  30  &  31  Vict.  c.  142.  The  Superior  Court  has  no  juris- 
I*  588]  diction  to  make  any  order  as  to  costs.  (Moody  v.  Steward, 
L.  R.  6  Ex.  35  ;  40  L.  J.  Ex.  25  ;   19  W.  R.  161  ;   23  L.  T.  465.) 

Other  Inferior  Courts. 

There  are  many  inferior  courts  in  which  actions  of  libel  and 
slander  can  be  brought,  such  as  the  Mayor's  Court,  London,  the 
Tolzey  Court  of  Bristol,  the  Salford  Hundred  Court  of  Record,  the 
Court  of  Passage,  Liverpool,  &c.  As  to  the  jurisdiction  of  such 
Courts  generally,  see  ante,  p.  518.  The  Salford  Hundred  Court  has 
power  to  hear  all  cases  of  libel  or  slander  arising  within  the  jurisdic- 
tion of  the  court,  provided  the  damages  claimed  do  not  exceed  £50. 

(526) 


OTHER    INFERIOR    COURTS.  455 

If  they  exceed  .£50,  it  appears  that  the  court  lias  no  jurisdiction,  even 
by  consent,  (f)  &  10  Vict  c.  cxxvi.  ;  Farrow  v.  Hague,  3  II.  &  C 
101;  33  L.  J.  Ex.  258.)  The  costs  follow  the  event,  both  in  the 
Salford  Hundred  Court  (Turner  v.  Heyland,  4  ( '.  P.  D.  432;  48 
L.  J.  C.  P.  535  ;  41  L.  T.  550),  and  in  the  Liverpool  Court  of  Pas- 
Sage  {King  and  another  v.  Jaawkesworth,  4  Q.  I>.  D.  371  ;  48  L.  J. 
Q.  B.  484  ;  27  W.  R.  660  ;  41  L.  T.  411),  and  indeed  wherever  the 
case  is  tried  by  a  jury  ;  subject,  however,  to  the  power  reserved  to 
a  judge  by  Ord.  LXV.  r.  1,  to  deprive  a  successful  plaintiff  of  his 
costs,  on  good  cause  shown.  Section  29  of  the  County  Courts  Act, 
1867,  never  applied  to  actions  of  libel  or  slander,  for  they  never  could 
have  been  brought  in  a  County  Court;  and  even  where  it  does 
apply,  it  is  a  question  'whether  it  is  not  now  repealed,  as  it  is  not 
expressly  re-enacted  by  sect.  67  of  the  Judicature  Act,  1873. 


(■ri?r> 


CHAPTER  XX. 

[*589]  PRACTICE  AND  EVIDENCE  IN  CRIMINAL    CASES. 

This  chapter  naturally  divides  itself  into  two  parts  : — 
I.  Proceedings  by  way  of  Indictment. 
II.  Proceedings  by  way  of  Criminal  Information. 


PART  I. 


PRACTICE  AND  EVIDENCE  IN  CRIMINAL  PROCEEDINGS  BY  WAY  OF 
INDICTMENT. 

Proceedings  before  Magistrates. 

By  sect.  6  of  the  Newspaper  Libel  and  Registration  Act,  1881 
[ante,  p.  386),  "every  libel  or  alleged  libel"  is  included  in  the  Vex- 
atious Indictments  Act  (22  &  23  Vict.  c.  17)  ;  and  this  section  ap- 
plies to  all  libels,  whether  published  in  a  newspaper  or  not.  Hence 
criminal  proceedings  for  libel  now  commence  by  the  prosecutor 
summoning  the  accused  before  a  police  or  stipendiary  magistrate,  or 
before  two  justices  of  the  peace.  The  magistrate  may,  indeed,  if 
he  think  fit,  on  good  cause  shown  and  information  sworn,  issue  a 
warrant  for  his  apprehension  in  the  first  instance  without  any  previ- 
ous summons  (Butt  v.  Conant,  1  Brod.  &  B.  548  ;  4  Moore,  195  ; 
Gow,  84  ;  11  &  12  Vict.  c.  42,  ss.  1,  8)  ;  but  such  a  step  will  seldom 
be  taken  on  a  charge  of  libel.  If  the  alleged  libel  appeared  in  a 
newspaper,  and  the  defendant  be  the  proprietor,  publisher,  editor, 
or  any  person  responsible  for  its  publication,  no  criminal  prosecution 
can  be  commenced  without  the  vrvittenjiat  or  allowance  of  the  Direc- 
tor of  Public  Prosecutions  in  England,  or  Her  Majesty's  Attorney- 
General  in  Ireland,  being  first  had  and  obtained.  (Sect.  3  of  the  News- 
paper Libel  and  Registration  Act,  1881.)  This  section  does  not  apply 
to  any  criminal  information,  [*  590]  whether  ex  officio  or  otherwise. 
(R.  v.  Yates,  11  Q.  B.  D.  750  ;  52  L.  J.  Q.  B.  778  ;  48  J.  P.  102; 
15  Cox,  C.  C.  272  ;  Yates  v.  The  Queen,  (C.  A.)  14  Q.  B.  D.  648  ; 
54  L.  J.  Q.  B.  258  ;  33  W.  R.  482  ;  52  L.  T.  305  ;  15  Cox,  C.  C. 
686  ;  49  J.  P.  436.)  The  Director  of  Public  Prosecutions  has  an  ab- 
solute discretion  under  this  section  to  grant  or  withhold  his  fiat  as  he 
thinks  fit.  He  will  not  grant  it  where  a  civil  action  will  meet  all 
the  requirements  of  the  case.     The  court  has    no  power  to  control 

(i>28) 


PROCEEDINGS    BEFORE    MAGISTRATES.  457 

his  discretion  ;  no  mandamus  therefore  will  issue  to  compel  him  to 
grant  his  fiat  {Ex  parte  Hubert,  Hurler  &  Son,  17  J.  P.  724  ;  15 
Cox,  0.  C.  166  ;  24  Law  Times  (newspaper),  p.  229.) 

If  the  accused  does  not  appear  in  answer  to  the  summons,  the 
magistrate  may,  on  proof  of  due  service,  go  into  the  case  in  his 
absence,  but  he  more  usually  issues  a  warrant  lor  tin-  apprehension 
of  the  defendant.     (11  &  12  Vict.  c.  42,  ss.  1,  0.) 

•When  the  accused  comes  before  the  magistrate  the  prosecutor  has 
merely  to  prove  publication,  unless  it  is  not  clear  that  the  libel  refers 
to  the'  prosecutor,  in  which  case  it  may  he  necessary  to  call  someone 
acquainted  with  the  circumstances  to  state  that  on  reading  the  libel 
lie  understood  it  to  refer  to  the  prosecutor.  The  magistrate  must 
decide  for  himself  whether  the  written  matter  before  him  is  in  point 
(>f  law  a  libel.  Unless  it  is  clearly  no  libel  he  will,  after  proof  of 
publication  by  the  defendant  or  some  agent  or  servant  on  his  behalf 
(  see  ante,  pp.  413,  415),  commit  the  defendant  for  trial.  But,  before 
doino-  so,  he  must  ask  the  defendant  whether  he  desires  to  call  any 
witnesses.  (30  &  31  Vict.  c.  35  s.  3,  Russell  Gurney's  Act.)  The 
defendant  may  then  call  witnesses  to  prove  that  he  did  not  publish 
the  libel,  that 'it  does  not  refer  to  prosecutor,  that  it  is  on  the  face 
of  it  a  fair  and  bona  Jide  comment  on  certain  well-known  or  admit- 
ted facts  of  public  interest,  &c. 

Upon  the  hearing  of  a  charge  against  a  proprietor,  publisher,  or 
editor,  or  any  person  responsible  for  the  publication  of  a  newspaper, 
for  a  libel  published  therein,  the  court  may,  by  virtue  of  sect.  4  of 
the  Newspaper  Libel  and  Registration  Act,' 1881,  "receive  evidence 
as  to  the  publication  being  for  the  public  benefit,  and  as  to  the  mat- 
ters charged  in  the  libel  being  true,  and  as  to  the  report  being  fair 
and  accurate  and  published  witnout  malice,  and  as  to  any  matter 
which  under  this  or  any  other  act  or  otherwise  might  be  given  in 
evidence  by  way  of  defence  by  the  person  charged  on  his  trial  or 
indictment",  and'  the  court,  if  of  opinion  after  hearing  such  evidence 
that  there  is  a  strong  or  probable  presumption  that  the  jury  on  the 
trial  would  acquit  the  person  charged,  may  dismiss  the  case." 

But  except  in  cases  within  this  section,  the  accused  may  not  give 
[*59l]  any  evidence  before  the  magistrate  of  the  truth  of  the  mat- 
ters charged  in  the  libel,  unless  the  information  charges  him  with 
an  offence  under  sect.  4  of  Lord  Campbell's  Act,  _  "The  duty  and 
province  of  the  magistrate  before  whom  a  person  is  brought,  with  a 
view  to  his  being  committed  for  trial  or  held  to  bail,  is  to  determine, 
on  hearing  the  evidence  for  the  prosecution  and  that  for  the  de- 
fence, if  there  be  any,  whether  the  case  is  one  in  which  the  accused 
ought  to  be  put  upon  his  trial.  It  is  no  part  of  his  province  to  try 
the  case.  That  being  so,  in  my  opinion,  unless  there  is  some  fur- 
ther statutory  duty  imposed  on  the  magistrate,  the  evidence  before 
him  must  beVonfined  to  the  question  whether  the  cast'  is  such  as 
ought  to  be  sent  for  trial,  and  if  he  exceeds  the  limits  of  that  in- 
quiry, he  transcends  the  bounds  of  his  jurisdiction.  This  ease  was 
one  of  a  charge  of  libel,  and  the  magistrate  had  to  inquire,  first, 
whether  the  matter  complained  of  was  libellous,  and,  secondly, 
whether  the  publication  of  it  was  brought  home  to  the  accused,  so 

C529) 


458  PBACTICB    AND    EVIDENCE. 

far  as  that  there  ought  to  be  a  committal.  Independently  of 
statute,  the  magistrate  could  not  receive  evidence  of  the  truth  of 
the  libel.  The  question  then  arises  whether  Lord  Campbell's  Act 
enables  him  to  do  so.  In  my  opinion  it  does  not,  because  by  the 
provisions  of  the  Act  the  defence  founded  upon  the  truth  of  the 
libel  does  not  arise  at  that  stage,  and  cannot  be  put  forward  before 
the  magistrate.  Suppose  the  defendant  had  succeeded  fully  and 
entirely  in  showing  the  truth  of  the  libel.  What  then  would  have 
been  the  duty  of  the  magistrate?  lie  would  nevertheless  have 
been  bound  to  send  the  case  for  trial,  because  by  the  statute  the 
truth  of  the  libel  does  not  constitute  a  defence  until  the  statutorv 
conditions  are  complied  with,  and  they  cannot  be  complied  with  at 
that  stage  of  the  inquiry."  (Per  Cockburn,  C.J.,  in  R.  v.  Sir  Hubert 
( 'ardeii  (Labouchere's  case),  5  Q.  B.  D.  6,  7  ;  49  L.  J.  M.  C.  1  ;  28 
W.  R.  133  ;  41  L.  T.  504  ;  14  Cox,  C.  C.  359.)  And  this  decision 
was  followed  in  R.  v.  Floioers  (44  J.  P.  377)  ;  there  the  defence 
was  that  the  libel  was  a  fair  criticism  on  a  public  entertainment, 
and  the  magistrate  excluded  evidence  of  the  facts  commented  on, 
and  disallowed  all  cross-examination  thereon  ;  and  it  was  held  that 
he  was  right  in  so  doing.  But  when  the  defendant  is  charged  be- 
fore the  magistrate  with  an  offence  under  the  4th  section  of  Lord 
Campbell's  Act,  that  is,  with  maliciously  publishing  a  defamatory 
libel,  knowing  the  same  to  be  false,  there  is  open  to  the  defendant 
to  call  evidence  of  the  truth  of  the  libel,  so  as,  if  possible,  to  reduce 
the  charge  to  the  minor  offence.  {Ex  jxtrte  Ellissen  (not  reported), 
approved  by  Lush,  J.,  in  R.  v.  Carder,,  5  Q.  B.  D.  11,  18.) 

The  defendant  may  himself  in  every  case  make  a  statement  before 
[*592]  the  magistrates,  but  it  is  more  prudent  for  him  to  say  noth- 
ing, except  in  cases  wdiere  he  has  himself  seen  or  heard  something 
justifying  the  libel. 

Cases  of  libel  were  never  disposed  of  summarily  by  the  magis- 
trate or  justices  in  petty  sessions.  It  is  true  that  there  is  authority 
for  holding  that  in  some  cases  of  libel,  if  there  is  any  danger  of  a 
breach  of  the  peace,  the  justices  have  the  power  to  demand  sureties 
of  good  behaviour  from  the  libeller,  instead  of  committing  him  for 
trial  ;  and  may  themselves,  in  default  of  such  sureties,  commit  him 
to  gaol.  (Haylock  v.  Sparke,  1  E.  &  B.  471  ;  22  L.  J.  M.  C.  67  ; 
16  J.  P.  308,  359  ;  17  J.  P.  262,  overruling  the  dictum  of  Lord 
Camden  in  R.  v.  Wilkes,  2  Wils.  160  ;  and  see  R.  v.  Summers,  1 
Lev.  139,  and  R.  v.  Shuckburgh,  1  Wils.  29.)  Such  power,  if  any, 
was  never  exercised  ;  it  was  regarded  as  a  violation  of  the  princi- 
ple of  Fox's  Libel  Act,  that  libel  or  no  libel  is  a  question  for  the 
jury.  But  now,  by  sect.  5  of  the  Newspaper  Libel  and  Registra- 
tion Act,  1881,  "If  a  court  of  summary  jurisdiction  upon  the  hear- 
ing of  a  charge  against  a  proprietor,  publisher,  editor,  or  any  person 
responsible  for  the  publication  of  a  newspaper  for  a  libel  published 
therein  is  of  opinion  that  though  the  person  charged  is  shown  to 
have  been  guilty  the  libel  was  of  a  trivial  character,  and  that  the 
offence  may  be  adequately  punished  by  virtue  of  the  powers  of  this 
section,  the  court  shall  cause  the  charge  to  be  reduced  into  writing 
and  read   to  the  person  charged,  and  then  address  a  question  to 

(530) 


INDICTMENT.  459 

him  to  the  following  effect : — '  Do  you  desire,  to  be  tried  by  a  jury, 
or  do  you  consent  to  the  case  being  dealt  with  summarily?'  and,  if 
such  person  assents  to  the  case  being  dealt  with  summarily,  the 
court  may  summarily  convict  him  and  adjudge  him  to  pay  a  fine 
not  exceeding  fifty  pounds."  Sect.  27  of  the  Summary  Jurisdiction 
Act,  1879,  shall,  so  tar  as  is  consistent  with  the  tenor  thereof,  apply 
to  every  such  proceeding.     (See  note,  ante,  p.  386.) 

If  the  magistrate  decide  to  dismiss  the  case,  the  prosecutor  may 
still,  under  sect,  2  of  the  Vexatious  1  ndict incut s  Ad  (22  &  23  Vict. 
c.  17),  which,  by  sect.  0  of  this  Act,  is  made  applicable  to  ever;/ 
libel,  require  the  magistrate  to  hind  him  over  to  prosecute,  and  the 
magistrate  thereupon  is  hound  to  take  the  prosecutor's  recognizance 
ami  forward  the  depositions  to  the  court  in  which  the  indictment 
will  be  preferred.  But  in  that  case  the  prosecutor,  if  unsuccessful, 
will  have  to  pay  all  the  defendant's  costs.  (See  30  &  31  Vict.  c. 
35,  s.  2.) 

If  the  magistrate  decide  to  send  the  case  for  trial,  the  defendant 
is  entitled  to  he  bailed.  Reasonable,  but  not  excessive,  bail  should 
be  demanded,  and  it  is  for  the  justices  to  determine  whether  the 
sureties  offered  are  sufficient,  If  no  sufficient  bail  can  be  found,  the 
accused  [*593]  must  be  committed  to  prison  ;  hut  if  sufficient  sure- 
ties come  forward  the  magistrates  have  no  discretion  but  to  allow 
the  defendant  to  be  at  large  on  bail. 

In  the  case  of  an  obscene  libel  the  prisoner  may  be  committed  for 
trial  to  the  Quarter  Sessions  ;  in  every  other  case  he  must  he  sent 
to  the  Assizes  or  Central  Criminal  Court.  (5  &  6  Vict,  c,  3S,  s.  1.) 
As  to  Ireland,  see  lie  Armstrong,  9  Cox,  C.  C.  34,2. 

As  to  the  powers  of  magistrates,  &c,  in  the  case  of  obscene  books 
and  prints,  see  ante,  p.  472.  In  the  case  of  a  seditious  libel  there  is 
no  power  ^;o  issue  a  search  warrant  to  seize  the  author's  papers. 
(Leach's  case,  11  St.  Tr.  307  ;  19  Howell's  St.  Tr.  1002  ;  Etitick  v. 
Harrington  and  others,  11  St.  Tr.  317  ;  19  Howell's  St.  Tr.  1029.) 

Indictment. 

Counsel  must  next  be  instructed  to  draft  the  indictment.  This 
requires  great  care,  as  the  old  rules  of  pleading  apply  in  all  their 
strictness.  The  words  must  be  set  out  verbatim,  however  great  their 
length.  (R.  v.  Bradlaugh  and  Besant,  (C.  A.)  3  Q.  B.  D.  607  ;  48 
L.  J.  M.  C.  5  ;  26  W.  R.  410  ;  38  L.  T.  118.)  Any  material  varia- 
tion between  the  words  as  laid  in  the  indictment  and  the  words 
proved  at  the  trial  will  still  be  fatal,  in  spite  of  the  powers  of  amend- 
ment given  by  the  14  &  15  Vict.  c.  100,  s.  1.  (See  lie  Crowe,  3 
Cox,  C.  C.  123  ;  Ii.  v.  Fussell,  3  Cox.  C.C.  291.) 

If  the  words  are  in  a  foreign  language,  they  must  be  set  out  in  the 
original,  and  acorrect  translation  added.  {Zenoblo  v.  Axtell,  <>  T.  R. 
162  ;  3  M.  &  S.  116  ;  Ji.  v.  Goldstein,  3  Brod.  &  B.  201  ;  7  Moore, 
1  ;  10  Price,  88  ;  R.  &  R,  C.  C.  473.)  The  indictment  must  ex- 
pressly charge  the  defendant  "  with  publishing  ;  "  as  merely  writing 
a  libel  is  no  crime.  (Ii.  v.  Bnrdett,  4  B.  &  Aid.  95.)  It  must  also 
declare  that  the  libel  was  written  and  published  "  of  and  concerning  " 

(531) 


460  TRACTICE    AND    EVIDENCE. 

the  prosecutor.  The  omission  of  these  words  was  held  fatal  in  R.  v. 
Marsden,  4  M.  &  S.  104  ;  Russ.  on  Crimes,  309  ;  and  in  R.  v.  Sully, 
12  J.  P.  536.  But  if  it  sufficiently  appears  from  other  allegations 
in  the  indictment  to  whom  the  libel  refers,  it  will  be  held  good. 
{Gregory  v.  The  Queen,  15  Q.  B.  957  ;  15  Jur.  74  ;  5  Cox,  C.  C.« 
247.)  The  indictment  must  also  aver  all  facts  necessary  to  explain 
the  meaning  of  the  libel  and  to  connect  it  with  the  person  defamed  ; 
for  sect.  61  of  the  Common  Law  Procedure  Act,  1852,  applies  only 
to  pleadings  in  civil  cases,  so  that  in  an  indictment  an  innuendo  still 
requires  a  prefatory  averment  to  support  it.  Hence  there  is  still 
[*594]  considerable  technicality  in  criminal  pleading  ;  although 
modern  judges  will  never  be  quite  so  strict  as  their  predecessors. 
(See  ante,  pp.  118,  119.)  The  innuendo  can  only  explain  and  point 
the  defamatory  meaning  of  the  words  ;  it  must  not  introduce  new 
matter.  The  judgment  of  De  Grey,  C.  J.,  in  R.  v.  Home  (1777) 
(Cowp.  682  ;  11  St.  Tr.  264  ;  20  How.  St.  Tr.  651),  "has  universally 
been  considered  the  best  and  most  perfect  exposition  of  the  law  on 
this  subject."  (Per  Abbott,  C.  J.,  in  R.  v  Burdett,  4  B.  &  Aid.  316.) 
Extrinsic  facts  must  be  averred  where,  without  such  averments, 
the  libel  would  appear  innocent  or  unmeaning.  (li.  v.  Yates,  12 
Cox,  C.  C.  233.)  But  where  the  writing  on  the  face  of  it  imports  a 
a  libel,  no  innuendo  is  necessary,  nor  any  introductory  averments. 
{R.  v.  Tutchin  (1704),  14  How.  St,  Tr.  1095  ;  5  St.  Tr.  527  ;  2 
Lord  Raym.  1061  ;  1  Salk.  50  ;  6  Mod.  268  ;  Holt,  424.)  See 
further  as  to  the  office  of  the  innuendo,  ante,  pp.  100 — 103. 

In  1652  Rolle,  C.  J.,  laid  it  down  that  "  in  an  indictment  a  thing 
must  be  expressed  to  be  done  /also  et  malitiose,  because  that  is  the 
usual  %rm."  {Anon.,  Style,  392.)  But  in  R.  v.  Burks  (7  T.  R.  4) 
the  Court  of  King's  Bench  decided  that  in  an  information,  at  all 
events,  it  is  unnecessary  to  allege  that  the  libellous  matter  is  false. 
Still  it  is  safer  to  insert  such  an  averment,  "  because  that  is  the 
usual    form." 

In  some  few  cases  it  is  necessary  to  aver  a  special  intent.  Thus, 
Abbott,  J.,  held,  in  R.  v.  Wegener  (2  Stark.  245),  that  where  'a  letter 
is  sent  direct  to  the  prosecutor,  and  published  to  no  one  else,  an 
intention  to  provoke  the  prosecutor  and  to  excite  him  to  a  breach  of 
the  peace  must  be  alleged,  and  that  an  allegation  that  it  was  sent 
with  intent  to  injure,  prejudice  and  aggrieve  him  in  his  profession 
and  reputation  could  not,  in  such  a  case,  be  supported.  But  the 
Recorder  of  London  held  the  contrary  in  R.  v.  Brooke  (7  Cox,  C.  C. 
251)  ;  and  in  R.  v.  Price,  tried  at  the  Swansea  Assizes  on  August  9, 
1881,  Baggallav,  L.  J.,  after  consulting  Pollock,  B.,  decided  that  the 
averment  of  an  intention  to  provoke  the  prosecutor  to  a  breach  of  the 
peace  was  not  essential,  the  indictment  ending  as  usual  with  the 
words  "  against  the  peace  of  our  lady  the  Queen."  Still,  it  will 
always  be  safer  to  insert  the  words  which  Abbott,  J.,  thought  neces- 
sary.* Where  a  letter  containing  a  libel  on  a  married  man  is  sent  to 
his'  wife  "  it  ought  to  be  alleged  as  sent  with  intent  to  disturb  the 
domestic  harmony  of  of  the  parties."  (2  Stark.  245  ;  see  also  R.  v. 
Benfield,  2  Burr.  980.)  So  in  the  case  of  a  libel  on  a  person  deceased, 
an  intent  should  be   alleged  to  bring  contempt  and  scandal  on  his 

(532) 


PLEADING    TO    THE    INDICTMENT.  461 

[*595]  family  and  relations,  ami  so  provoke  them  to  a  breach  of  the 
peace  (jB.  v.  Topham.,  4  T.  R.  126,  ante,  p.  423  ;  lmt  now  sec  7?.  v. 
Ensor,  3  Times  L.  R.  366  ;  and  Precedent  No.  102, post,  p.  682.) 

There  is  no  objection  to  joining  several  counts,  each  for  a  sepa- 
rate libel,  in  the  same  indictment  (  /><  r  Lord  Ellenborough,  in  R.  v. 
Jones,  2  Camp.  132);  and  the  grand  jury  may  of  course  ignore  one 
count,  and  find  a  true  bill  on  any  other.  Or  a  count  for  libel  may 
be  joined  in  the  same  indictment  with  a  count  for  any  other  misde- 
meanour, though  this  will  not  be  found  convenient  in  practice,  as 
the  judge  may  call  on  the  prosecutor  t<>  elect  en  which  he  will  pro- 
ceed (B.  v.  Murphy,  8  C.  &  P.  297);  although  lie  will  not  do  so 
where  the  counts  are  all  for  libel,  and  for  libels  appearing  at  differ- 
ent dates  in  the  same  periodical.  (15  Cox,  C.  ('.  220.)  But  counts 
may  not  be  added  for  any  libels  in  respect  of  which  the  prisoner 
was  not  committed  for  trial,  unless  the  express  leave  of  the  judge 
be  obtained  under  the  Vexatious  Indictments  Amendment  Act, 
1867  (30  &  31  Vict.  c.  35),  s.  1.  before  the  bill  is  presented  to  the 
grand  jury.  The  obtaining-  of  such  leave  is  not  a  mere  formality, 
but  must  conform  to  the  spirit  and  intention  of  that  Act  ;  and  the 
additional  counts  will  be  quashed,  if  leave  was  granted  on  insuf- 
ficient materials.  (B.  Pros.  Tyler  v.  Bradlaugh  and  others,  31  W. 
R.  229  ;  47  L.  T.  477  ;  47  J.  P.  71  ;  15  Cox,  C.  C.  156.)  And  now 
since  the  Newspaper  Libel  and  Registration  Act,  1881,  sect.  6,  it  is 
no  longer  in  the  power  of  the  prosecutor  when  the  magistrate  has 
only  committed  the  defendant  under  sect.  5  or  for  the  common  law 
offence,  to  add  a  count  under  sect.  4  of  of  Lord  Campbell's  Act  (as 
it  was  formerly  ;  see  5  Q.  B.  D.  p.  12  ;  Boaler  v.  Holder,  54  L.  T. 
298).  The  count  for  the  graver  offence  will  now  be  quashed  or 
amended  so  as  to  make  the  indictment  correspond  with  the  com- 
mittal. (B.  v.  Felbermann  and  Wilkinson,  51  J.  P.  168  ;  Boeder  v. 
Holder,  3  Times  L.  R.  546  ;  51  J.  P.  277.) 

All  who  are  in  any  way  concerned  in  the  composition  or  publica- 
tion of  a  libel  may  be  joined  in  the  same  indictment.  For  by  the 
24  &  25  Vict.  c.  94,  s.  8,  "whosoever  shall  aid,  abet,  counsel  or 
procure  the  commission  of  any  misdemeanour,  whether  indictable 
at  common  law  or  by  virtue  of  any  statute,  may  be  tried,  indicted, 
and  punished  as  a  principal  offender."  But  if  one  defendant  denies 
that  he  is  in  any  way  connected  with  the  libel,  and  desires  to  call 
his  co-defendants  as  witnesses  in  support  of  his  case,  the  judge  will 
order  him  to  be  tried  separately  from  the  others,  unless  such  sepa- 
rate trial  would  embarrass  the  prosecution  more  than  a  joint  trial 
would  prejudice  the  defendant.  It  is  a  question  of  the  balance  of 
convenience.  (Per  Lord  Coleridge,  in  B.  v.  Bradlaugh  anel  others,* 
15  Cox.  C.  C.  207,  220.) 

[*596]  Pleading  to  the  Bidict>nc?it. 

When  a  true  bill  has  been  found  by  the  grand  jury,  the  defend- 
ant is  arraigned,  the  substance  of  the  indictment  is  read  over  to 
him,  and  he  is  then  called  on  to  plead.    At  common  law  he  might — 

(1)   Demur  to  the  indictment  ; 

<533) 


4G2  PJtACTICE    AND    EVIDENCE. 

(2)  Plead  to  the  jurisdiction  of  the  court  ; 

(3)  Plead  especially  in  bar — 

(a)  Autrefois  acquit  ; 

(b)  Autrefois  convict  (see  post,  p.  606)  ; 

(c)  Pardon  ; 

(4)  Plead  guilty  ;  or 

(5)  Plead  the  general  issue — not  Guilty  (see  ante,  534). 

If  the  prisoner  stands  mute  of  malice;  or  does  not  answer 
directly  to  the  charge,  a  plea  of  Not  Guilty  shall  be   entered 
for  him,  and  the  trial  shall  proceed  as  though  he  had  actually 
pleaded  the  same.     (7  &  8  Geo.  IV.  c.  28,  s.  2.) 
By  virtue  of  6  &  V  Vict.  c.  96,  s.  6,  he  may  now  also — 

(6)  Plead  a  justification  that  the  words  arc  true  and  that  it  was 
for  the  public  benefit  that  they  should  be  published.  (See  ante,  p. 
437.)  This  plea  may  be  pleaded  with  Not  Guilty;  it  must  be 
entered  and  filed  at  the  Crown  Office  or  with  the  Clerk  of  Assize, 
and  a  copy  delivered  to  the  prosecutor. 

There  is  now  but  little  use  in  demurring  to  an  indictment,  except 
where  the  words  are  not  clearly  libellous  in  themselves,  and  are  not 
reasonably  susceptible  of  the  meaning  ascribed  to  them  by  the  in- 
nuendo. In  such  a  case  it  might  be  well  to  put  an  end  to  the  case 
as  quickly  as  possible.  But  if  the  demurrer  be  for  a  mere  formal 
defect,  the  court  has  power  to  amend,  after  the  demurrer,  either  an 
information  (R.  v.  Wilkes  ,  4  Burr.  2568  ;  R.  v.  Holland,  4  T.  R. 
457),  or  now  even  an  indictment.  (14  &  15  Vict.  c.  100,  ss.  1,  2,  3, 
25.)  If,  on  the  other  hand,  the  defect  is  one  of  substance,  it  will 
not  be  waived  by  pleading  over,  nor  will  it  be  cured  by  verdict  ; 
but  the  defendant  may  still  bring  error,  or  move  an  arrest  of  judg- 
ment after  conviction.  (See  14  &  15  Vict,  c.  100,  c.  25.)  More- 
over there  is  this  danger  in  demurring,  that  the  defendant  may  not 
demur  and  plead"  Not  Guilty  at  the  same  time  (R.  y.  Odgers,  2 
Moo.  &  Rob.  479);  hence,  in'strict  law,  if  he  fail  on  his  demurrer, 
final  judgment  will  be  entered  for  the  Crown  on  the  whole  case. 
(R.  v.  Taylor,  3  B.  &  C.  509,  515  ;  5  D.  &  R.  422.)  But  the 
court  has  power  to  permit  the  defendant  afterwards  to  plead  over, 
and  in  these  more  merciful  days  will  generally  exercise  that  power. 
[*597J  R.  v.  Mitchell,  3  Cox,  C.  C.  93  ;  R.  v.  Birmingham  & 
Gloucester  Railway  Co.,  3  Q.  B.  223,  233  ;  10  L.  J.  M.  C.  136.) 

The  plea  of  Not  Guilty  puts  the  prosecutor  to  proof  of  every  ma- 
terial allegation  in  the  indictment.  The  defendant  may  show  under 
this  plea  that  the  libel  was  a  fair  and  bond  fide  comment  on  a  mat- 
ter of  public  interest,  that  the  occasion  of  publication  was  privileged 
•  and  may  indeed  raise  every  other  defence  permitted  him  by  law,  ex- 
cept that  the  libel  is  true. 

It  is  only  in  the  case  of  a  defamatory  libel  on  a  private  individual 
that  the  defendant  may  justify  under  Lord  Campbell's  Act.  (Ante, 
p.  438.)  And  he  does'so  at  his  peril  ;  for  placing  such  a  plea  on  the 
record  will  be  deemed  an  aggravation  of  his  offence,  should  he  fail 
to  prove  it.  By  the  expresV words  of  Lord  Campbell's  Act,  a  plea 
of  justification  under  sect.  6  shall  be  pleaded  "in  the  manner  now 
required  in  pleading  a  justification  to  an  action  for  defamation,"  as 

(534) 


CERTIORARI.  463 

to  which  see  ante,  pp.  177,  5.38.  But  in  spite  of  these  words  there 
is  no  power  in  any  court  to  order  particulars  of  such  a  plea  to  an  in- 
dictment or  information,  or  to  strike  it  out.  {Re  lieu,  9  Cox,  C.  C. 
401.)  If  sufficient  details  be  not  given  in  the  plea,  the  only  course 
is  for  the  prosecutor  to  demur.  (A',  v.  Hoggan,  Times  for  Nov. 
4th,  1880.)  To  such  a  plea  the  prosecutor  may  reply  generally, 
denying  the  whole  thereof.  (See  precedents  of  such  plea  and  reply  in 
Appendix  A.,  Nos.  38,39,  40.)  The  other  pleas  mentioned  above 
are  now  of  rare  occurrence.     (See  post,  p.  086.) 

Certiorari. 

An  application  is  frequently  made  to  the  Queen's  Bench  Division 
for  a  writ  of  certiorari  to  bring  up  an  indictment  for  libel  from  an 
inferior  court  that  it  may  be  tried  in  a  Superior  Court.  The  appli- 
cation is  frequently  made  before  the  indictment  is  found  by  the 
grand  jury,  the  court  being  asked  to  remove  "  any  indictment  which 
may  be  found."  In  no  other  way  can  the  court  change;  the  venue  in 
a  criminal  case.  {R.  v.  Casey,  13  Cox,  C.  C.  014  ;  R.  v.  Hon. 
F.  Cavendish,  2  Cox,  C.  C.  175.)  The  advantages  obtained  by  the 
removal  are  amongst  others,  that  in  the  Queen's  Bench  Division  a 
special  jury  can  be  secured,  and  that  the  defendant  can  move  the 
court  for  a  new  trial,  if  convicted. 

Where  the  application  is  made  by  the  Attorney-General  officially, 
the  writ  issues  as  a  matter  of  course.  {R.  v.  Thomas,  4  M.  &  S.  442.) 
But  where  a  private  individual  applies  for  the  writ,  whether  prose- 
cutor or  defendant,  he  will  have  to  file  affidavits  showing  some  spec- 
ial ground  for  the  removal,  arising  out  of  the  circumstances  of  the 
par[*598]  ticular  case  (Crown  Office  Rules,  1886,  29)  ;  and  he  must 
also  enter  into  recognizances  to  pay  all  costs  incurred  subsequent  to 
the  removal,  if  he  be  ultimately  unsuccessful.  (16  &  17  Vict.  c.  30, 
ss.  4,  5.)  The  application  may  in  vacation  be  made  to  a  judge  at 
chambers.  (5  &  6  Will.  &  Mary,  c.  rr.  s.  3  ;  Crown  Office  Rules, 
1886,  42.) 

One  of  several  defendants  may  obtain  the  writ  ;  if  he  does,  this 
will  remove  the  indictment  as  to  all.  {R.  v.  Boxall,  4  A.  &  E.  513.) 
But  the  judge  wluo  grants  the  certiorari  will  require  the  defendant 
who  applies  for  it  to  give  security  for  the  costs  of  the  prosecution 
occasioned  by  the  removal,  in  the  event  of  any  one  of  the  defendants 
being  convicted.  (R.  v.  Jewell,  7  E.  &  B.  140  ;  26  L.  J.  Q.  B.  177  ; 
R.  v.  Fonlkes,  1  L.  M.  &  P.  720  ;  20  L.  J.  M.  C.  196.) 

The  affidavits  should  be  entitled  "  in  the  Queen's  Bench  Division  " 
simply.  The  mere  fact  that  the  defendant  desires  a  special  jury  is 
not  alone  a  sufficient  ground  for  removal.  (R.  v.  Morton,  1  Dowl. 
N.  S.  543.)  Nor  is  it  enough  to  show  on  affidavit  that  difficult 
questions  of  law  may  arise  (R.  v.  Joule,  5  A.  &:  E.  539),  especially 
if  the  indictment  be  in  the  Central  Criminal  Court.  (R.  v.  Tem}> 
lar,  1  Nev.  &  P.  91.)  But  if  it  can  be  proved  that  a  fair  and  impar- 
tial trial  of  the  case  cannot  be  had  in  the  court  below,  the  applica- 
tion will  be  readily  granted.  (R.  Y.Hunt  and  others,  3  B.  &  Aid. 
444  ;  R.  v.  Palmer,  o  E.  &  B.  1024.)     No  appeal  lies  to  the  Court 

(535) 


464  PRACTICE    AND    EVIDENCE. 

of  Appeal  from  the  Refusal  of  the  Queen's  Bench  Division  to  grant 
a  certiorari.  (II,  v.  Rudge,  (C.  A.)  16  Q.  B.  D.  459  ;  55  L.  J.  M. 
C.  112  ;  34  YV.  R.  207  ;  .r):i  L.  T.  851  ;  50  J.  P.  755.) 

Formerly  in  cases  of  misdemeanour  the  court  made  the  order  ab- 
solute in  the  first  instance.  (P.  v.  Spencer,  8  Dovvl.  127  ;  P.  v. 
Chipping  Sodbury,^.  &  M.  104.)  Hut  now  in  all  cases  an  order 
nisi  only  is  granted,  unless  there  be  great  urgency.  (See  Crown 
Office  Rules,  L886,  28.)  If  an  order  nisi  for  such  a  writ  be  obtained, 
the  court  below  will,  as  of  course,  order  the  trial  to  stand  over  till 
the  argument.  If  the  order  be  made  absolute,  either  prosecu- 
tor or  defendant  can  apply  for  a  special  jury.  (6  Geo.  IV.  c.  50,  s. 
30.)  After  the  removal  the  defendant  must  appear  in  the  Queen's 
Bench  Division,  and  plead  or  demur  to  the  indictment  within  four 
davs,  if  not  immediately  ;  but  the  court  will  grant  him  further  time 
on  good  cause  shown.     (60  Geo.  III.  &  1  Geo.  IV.  c.  4,  ss.  1,2.)  _ 

The  trial  may  take  place,  either  at  bar  in  the  Queen's  Bench  Divi- 
sion at  the  Royal  Courts  of  Justice,  or  at  the  assizes  on  the  civil  side, 
or  at  the  Central  Criminal  Court.  (19  &  20  Vict.  c.  16,  s.  1.)  A 
successful  prosecutor  will  be  entitled  to  his  costs,  whether  he  be 
"the  party  grieved  or  injured  "  by  the  defendant's  words  or  not. 
[*599]  (P.  v.  Oastlcr,  I,  R.  9  Q.  B.  131  ;  42  L.  J.  Q.  B.  42;  22  W.  R. 
490;29L.  T.  830  ;  overruling  li.  v.  Devhurst,b  B.  &  Ad.  405.)  The 
costs  will  be  taxed  under  a  side-bar  rule  ;  and  if  they  are  not  paid 
within  ten  days  the  recognizance  will  be  estreated,  and  the  sureties 
compelled  to  pay.  (16  &  17  Vict.  c.  30,  s.  6.)  The  sureties  may 
then  sue  the  defendant  and  recover  the  amount  for  which  they  be- 
came bail  in  an  action  for  money  paid  at  the  defendant's  request. 
(Jones  v.  Orchard,  16  C.  B.  614  ;  24  L.  J.  C.  P.  229  ;  3  W.  R.  554.) 

A  writ  of  certiorari  may  also  be  applied  for  to  bring  up  an  indict- 
ment in  order  that  its  validity  may  be  considered  and  determined, 
and  that  it  may  be  quashed,  if  proved  invalid.  Such  an  application 
must  be  made  after  the  bill  is  found  and  before  judgment:  has  been 
given  thereon  ;  for  after  judgment  has  been  given  the  record  can 
only  be  removed  by  writ  of  error.  (R.  v.  Seton,  7  T.  R.  373  ;  In  re 
Pratt,  7  A.  &  E.  27  ;  P.  v.  Unrein,  7  Dowl.  578  ;  P.  v.  Christian, 
12  L.  J.  M.  C.  26  ;  P.  v.  Wilson,  14  L.  J.  M.  C.  3.)  The  court  below 
has  full  power  to  hear  a  motion  in  arrest  of  judgment. 

Evidence  for  the  Prosecution. 

When  the  case  comes  on  for  trial  the  onus  lies  on  the  prosecutor 
to  prove — 

(1.)  That  the  defendant  published  the  defamatory  words.  As  to 
what  is  a  sufficient  publication  in  law,  see  ante,  c.  VI.  pp.  151—169. 
As  to  constructive  publication  by  the  act  of  the  defendant's  servant 
or  agent,  see  ante,  pp.  411 — 413.  The  proof  of  publication  in 
criminal  cases  is  precisely  the  same  as  in  civil  cases,  save  that  it  is 
not  essential  to  prove  a 'publication  to  a  third  person,  where  the 
indictment  alleges  an  intent  to  provoke  a  breach  of  the  peace.  (P. 
v.  Wegener,  2  Stark.  245  ;  Phillips  v.  Jansen,  2  Esp.  624  ;  Clutter- 
buck  v.  Chafers,  1  Stark.  471.)     Sect.  27  of  the  Common  Law  Pro- 

rr>3fi} 


EVIDENCE  FOR  THE  PEOSECUTION".  465 

cedure  Act,  1854,  ante,  p.  500,  as  to  comparison  of  handwriting, 
though  originally  confined  to  civil  proceedings  (sect.  10-'3),  now 
applies  to  criminal  trials  as  well.  (28  &  29  Vict.  c.  18,  s.  8.  See 
also  R.  v.  Beare,  1  Lord  Ravin.  414  ;  12  Mod.  221  ;  2  Sulk.  417  ; 
Carth.  409  ;  Holt,  422  ;  ft.  v.  Slaney,  5  C.  &  P.  213.)  Whoever 
requests  or  procures  another  to  write  or  publish  a  libel  will  he  held 
equally  guilty  with  the  actual  publisher.  (ft.  v.  Cooper,*  Q.  B. 
533  ;  15  L.  .1.  Q.  B.  200.)  If  the  manuscript  from  which  a  libel  has 
been  printed  be  produced  and  proved  to  be  in  the  handwriting  of 
the  defendant,  this  is  prima  facie  proof  that  he  authorised  or 
directed  the  printing  and  publishing  ;  though  the  defendant  may 
give  evidence  to  rebut  it.  (ft.  v.  Lovett,  9  [*000]  C.  &  P.  462. 
And  see  the  remarks  of  Lord  Erskine,  5  Dow.  II.  L.,  at  p.  201.) 

(2.)  It  is,  however,  necessary  in  a  criminal  case  to  prove  further 
that  the  prisoner  published  the  libel  in  the  county  in  which  the 
venue  is  laid.  However,  if  the  defendant  write  a  libellous  letter 
and  cause  it  to  be  posted,  that  letter  is  published  both  in  the  county 
where  it  is  posted,  and  in  the  county  to  which  it  is  addressed.  (It. 
v.  Burdett,  4  B.  &  Aid.  95  ;  ft.  v.  Girdwood,  1  Leach,  169  ;  East, 
P.  C.  1120,  1125  ;  ft.  v.  Holmes,  12  Q.  B.  D.  23  ;  49  L.  T.  540.) 
If  the  person  to  whom  it  is  addressed  be  not  then  at  the  address 
given  on  the  envelope,  and  the  letter  be  forwarded  unopened  to 
him  at  his  lodgings  in  Middlesex,  and  there  opened,  then  this  is  a 
publication  by  the  defendant  in  Middlesex,  (ft.  v.  Watson,  1  Camp. 
215.)  The  post-mark  is  sufficient  primd  facie  evidence  that  the 
letter  was  in  the  post-office  named  on  the  date  of  the  mark.  (ft.  v. 
Plumer,  Russ.  &  Ry.  164  ;  ft.  v.  Canning,  19  St.  Tr.  370  ;  ft.  v. 
Hon.  Robert  Johnson,  7  East,  65  ;  3  Smith.  94  ;  29  How.  St.  Tr. 
103  ;  Stockoi  v.  Collin,  7  M.  &  W.  515  ;  10  L.  J.  Ex.  227.)  These 
cases  must  be  taken  to  overrule  the  dictum  of  Lord  Ellenborough 
in  ft.  v.  Watso?i,  1  Camp.  215.  An  admission  by  the  defendant 
that  he  wrote  the  libel  is  no  admission  that  he  published  it,  still  less 
that  he  published  it  in  any  particular  county.  (The  Seven  Bishops'' 
case,  4  St.  Tr.  304  ;  ft.  v.  Burdett,  4  B.  &  Aid.  95.) 

(3.)  The  prosecutor  must  now  put  in  the  libel  and  have  it  read  to 
the  jury.  The  libel  itself  must,  if  possible,  be  produced  at  the 
trial.  If  it  be  in  the  possession  of  the  defendant,  and  notice  has 
been  given  to  him  to  produce  it,  and  he  refuses  so  to  do,  secondary 
evidence  may  be  given  of  its  contents.  (Attorney-  General  v.  Be 
Merchant,  2  T.  R.  201,  n.  ;  ft.  v.  Boucher,  1  F.  &  F.  486.)  But 
proof  that  the  document  was  last  seen  in  the  possession  of  a  servant 
of  the  defendant  does  not  of  itself  eiititle  the  prosecutor  to  give 
parol  evidence  of  its  contents,  (ft.  v.  Pearce,  Peake,  75.)  Notice 
to  produce  must  be  given  a  reasonable  time  before  the  trial.  No 
general  rule  can  be  laid  down  as  to  what  is  a  reasonable  time  ;  each 
case  must  be  governed  by  its  particular  circumstances  ;  but  if  it 
appear  that  since  the  notice  was  given  there  was  an  opportunity  of 
fetching  the  document,  the  notice  will  be  held  sufficient.  (Per 
Bramwell,  B.,  in  ft.  v.  Barker,  1  F.  &  F.  326.)  Any-other  docu- 
ments which  explain  the  libel,  and  are  referred  to  in  it,  may  also  be 
put  in  and  read.  (ft.  v.  Slaney,  5  C.  &  P.  213.) 
30  lib.  &  slan.  (537) 


40G  PRACTICE   AND    EVIDENCE. 

Any  variance  between  the  words  as  proved  and  the  words  as  laid 
will  be  fatal,  if  it  in  any  way  affects  the  sense.  But  a  variance 
which  is  immaterial  to  the  merits  of  the  case  may  be  amended  by 
the  judge  [*601)  at  the  trial,  at  any  time  before  verdict,  if  he 
thinks  that  such  amendment  cannot  prejudice  the  defendant  in  his 
defence  on  the  merits.  (7  Geo.  IV.  c.  04,  s.  20  ;  14  &  15  Vict.  c. 
100,  ss.  1,  24,  25.)  But  once  such  amendment  has  been  made,  there 
is  no  power  of  amending  the  amendment,  or  reverting  to  the  indict- 
ment as  it  originally  stood  ;  but  the  case  must  be  decided  upon  the 
indictment  in  its  amended  form. 

The  prosecution  must  further  prove  the  innuendoes  and  all  ex- 
planatory averments  of  extrinsic  facts,  whenever  such  proof  is  nec- 
essary to  bring  out  the  libellous  nature  of  the  publication,  or  to 
point  its  application  to  the  person  defamed.  That  asterisks  or 
blanks  are  left  where  the  name  of  the  person  defamed  should  appear 
is  no  defence,  if  those  who  knew  the  circumstances  understood  the 
libel  to  refer  to  the  prosecutor.  Any  declarations  of  the  defendant 
as  to  what  he  meant  are  admissible  in  evidence  against  him.  (R.  v. 
Tucker,  Ry.  &  Moo.  134.)  Strict  proof  must  be  given  of  all  ma- 
terial and  necessary  allegations  in  the  indictment,  which  the  libel 
itself  does  not  admit  to  be  true.  (R.  v.  Sutton,  4  M.  &  S.  548  ;  R. 
v.  Holt,  5  T.  R.  436  ;  R.  v.  Martin,  2  Camp.  100  ;  B.  v.  JBudd, 
5  Esp.  230.) 

It 'will  then  be  for  the  jury,  after  considering  this  evidence,  to 
Bay  whether  the  publication,  when  taken  as  a  whole,  is  or  is  not  a 
libel. 

(4)  In  a  few  cases  the  prosecution  must  also  prove  a  special  intent 
stated  in  the  indictment.  (Ante,  pp.  423,  594.)  Whether  such 
special  intent  existed  or  no  is  a  question  for  the  jury.  An  aver- 
ment of  intention  is  divisible  ;  so  that  where  a  libel  is  alleged  to 
have\)een  published  with  intent  to  defame  certain  magistrates,  and 
also  to  bring  the  administration  of  justice  into  contempt,  it  is  suf- 
ficient to  prove  a  publication  with  either  of  these  intentions.  (R. 
v.  Evans,  3  Stark.  35.)  Malice  need  never  be  proved  unless  the 
occasion  be  privileged. 

(5.)  If  the  indictment  be  framed  under  sect.  4  of  Lord  Campbell's 
Act,  the  prosecutor  must  give  some  evidence  that  the  defendant 
knew  that  the  words  were  false.  But  in  no  other  case  need  the 
prosecutor  give  any  evidence  to  show  that  the  libel  is  false. 

Evidence  for  the  Defence. 

The  defendant  may  call  evidence  rebutting  the  case  for  the  pros- 
ecution, e.g.,  he  may  dispute  the  fact  of  publication,  or  negative  the 
innuendo,  or  show  that  the  libel  referred  to  some  one  else,  not  the 
prosecutor.  He  may  give  in  evidence  any  facts  which  put  a  differ- 
ent complexion  on  the  libel,  e.g.,  other  passages  contained  in  the 
same  publication,  fairly  connected  with  the  same  subject.  (R.  v. 
Lambert  [*602]  and  Perry,  2  Camp.  398  ;  31  How.  St.  Tr.  340.) 
So,  too,  the  defendant  may  give  evidence  of  any  collateral  facts 
which  show  that  the   libel   complained  of  is  a  fair  and  bona,  fide 

(.538) 


EVIDENCE    FOR    THE    DEFENCE.  467 

comment  on  a  matter  of  public  interest,  or  is  privileged  by  reason 
of  the  occasion  on  which  it  was  published.  Unless  such  privilege 
be  absolute,  the  prosecutor  may  rebut  this  defence  by  evidence  of 
malice,  precisely  as  in  civil  cases.     (Ante,  c.  IX.  pp.  269—290.) 

The  defendant  may  also  cross-examine  the  plaintiff's  witnesses  as 
to  any  previous  statements  made  by  them  on  the  subject-matter  of 
the  indictment,  and  if  such  statements  were  reduced  into  writing, 
such  writing  may  be  produced  to  contradict  them.  (28  &  29  Vict, 
c.  18,  ss.  4,  5.)  As  to  proving  a  previous  conviction  of  a  witness, 
see  ante,  p.  573. 

The  defendant  may  call  evidence  to  show  that  though  he  pub- 
lished the  libel  with  his  own  hand  he  was  not  at  the  time  conscious 
of  its  contents.  The  onus  of  proving  this  lies  on  the  defendant  ; 
the  bare  delivery  of  the  letter,  though  sealed,  has  been  held  to  be 
'prima  facie  evidence  of  a  knowledge  of  its  contents.  (R.  v.  Gird- 
wood,  1  Leach,  169  ;  East,  P.  C.  1120,  1125.)  But  if  the  defend- 
ant can  prove  that  he  cannot  read,  or  that  he  never  had  any  oppor- 
tunity of  reading  the  libel,  but  delivered  it  pursuant  to  orders,  hav- 
ing no  reason  to  suppose  its  contents  illegal,  this  will  be  a  defence. 
(See  ante,  pp.  432,  433.) 

Ao-ain,  where  evidence  has  been  given  which  has  established  a 
primd  facie  case  of  publication  against  the  defendant  by  the  act 
of  some  other  person  acting  by  his  authority,  the  defendant  may 
prove  that  such  publication  was  made  without  his  authority,  con- 
sent or  knowledge,  and  arose  from  no  want  of  due  care  or  caution  on 
his  part.  (6  &"7  Vict.  c.  96,  s.  7.)  The  leading  case  on  this  sec- 
tion is  R.  v.  Holbrook  and  others,  3  Q.  B.  D.  60  ;  47  L.  J.  Q.  B.  35  ; 
26  W.  R.  144  ;  37  L.  T.  530  ;  13  Cox,  C.  C.  650  ;  4  Q.  B.  D.  42  ; 
48  L.  J.  Q.  B.  113  ;  27  W.  R.  313  ;  39  L.  T.  536  ;  14  Cox,  C.  C. 
185,  ante,  p.  415.  Mr.  Bradlaugh  succeeded  in  establishing  a 
defence  under  this  section  in  R.  v.  Bradlaugh  and  others,  15  Cox, 
C.  C.  217,  ante,  p.  436. 

Also,  if  the  defendant  has  pleaded  a  plea  under  Lord  Campbell's 
Act,  but  not  otherwise,  he  may  give  evidence  of  the  truth  of  the 
libel.  But  the  truth  alone  is  no  defence  in  a  criminal  case,  unless 
the  defendant  can  also  show  that  it  was  for  the  public  benefit 
that  the  matters  charged  should  be  published.  No  such  plea  can 
be  pleaded  in  the  case  of  a  blasphemous,  obscene  or  seditious  libel. 
(R.  v.  Dufy,  9  Ir.  L.  R.  329  ;  2  Cox,  C.  C.  45  ;  Ex  parte  O'Brien, 
12  L.  R.  Ir.  29  ;  15  Cox,  C.  C.  180.)  If  a  general  charge  be  made 
in  the  libel,  [*603]  specific  instances  must  be  set  out  in  the  plea. 
It  will  be  sufficient,  however,  if  at  the  trial  two  or  three  distinct 
instances  are  proved  to  the  satisfaction  of  the  jury.  (R.jwos  Lam- 
bri  v.  Labouchere,  14  Cox,  C.  C.  419  ;  ante,  p.  174.) 

Evidence  that  the  identical  charges  contained  in  the  libel  which 
is  the  subject  of  the  indictment  had,  before  the  time  of  composing 
and  publishing  such  libel,  appeared  in  another  publication  which 
was  brought  to  the  prosecutor's  knowledge,  and  against  the  pub- 
lisher of  which  he  took  no  legal  proceedings,  is  not  admissible  either 
at  common  law  or  under  this  section.  (R.  v.  Holt,  5  T.  R.  436  ; 
R.  v.  Newman,  Dears.  C.  C.  85  ;    3  C.  &  K.  252  ;  1  E.  &  B.  268  ; 

(539) 


4G8  PRACTICE    AND    EVIDENCE. 

22  L.  J.  Q.  B.  156  ;  17  Jur.  617  ;  Pankhurst  v.  Hamilton,  2  Times 
L.  R.  682.)  That  rumours  to  the  same  effect  had  previously  been 
circulated  in  other  newspapers  is  no  justification  for  the  defendant's 
repeating  the  statement  in  his  own  paper,  especially  if  he  purports 
to  speak  from  authority.  (P.  v.  Harvey  and  Chapman,  2  B.  &  C. 
257.)  So,  too,  it  is  no  defence  to  a  charge  of  publishing  a  seditious 
libel,  that  it  is  an  extract  from  an  American  paper,  reprinted  as 
foreign  news,  especially  if  such  seditious  extracts  be  habitually 
published  by  the  defendant  at  a  time  of  great  political  excitement, 
without  one  word  of  warning  or  one  note  of  disapproval.  (P.  v. 
Pigott,  11  Cox,  C.  C.  46.)  Where  the  libel  contains  several  charges, 
the  defendant  must  prove  the  truth  of  them  all  ;  otherwise  the  jury 
will  be  bound  to  find  a  verdict  for  the  Crown  ;  and  the  court,  in 
giving  judgment,  must  consider  whether  the  guilt  of  the  defendant 
is  aggravated  or  mitigated  by  the  plea,  and  by  the  evidence  given 
to  prove  or  disprove  it,  and  form  its  own  conclusion  on  the  whole 
case.     (P.  v.  Newman,  1  E.  &  B.  558  ;  22  L.  J.  Q.  B.  156.) 

If  no  such  plea  has  been  placed  on  the  record,  no  evidence  can  be 
given  of  the  truth  of  the  defendant's  words.  But  if  evidence  be 
admissible  on  other  issues  in  the  case,  it  will  not  be  excluded  merely 
because  it  tends  to  show  the  truth  of  the  libel.  (P.  v.  Grant  and 
others,  5  B.  &  Adol.  1081  ;  3  N.  &  M.  106.) 

The  defendant  may  also,  as  in  other  criminal  cases,  call  witnesses 
to  his  good  character  ;  but  such  evidence  will  be  of  very  little  use, 
except  perhaps  in  cases  of  mistaken  identity.  Evidence  in  mitiga- 
tion of  punishment  is  not  generally  given  before  verdict  ;  but 
affidavits  may  be  filed  for  that  purpose  after  the  trial.  Some  judges 
permit  the  prisoner,  although  defended  by  counsel,  to  make  a  state- 
ment to  the  jury  before  his  counsel  addresses  them.  But  if  in  such 
statement  the  prisoner  gives  evidence,  the  counsel  for  the  prosecu- 
tion can  claim  the  right  to  reply  generally,  after  the  counsel  for  the 
prisoner  [*  604]  has  concluded  his  speech.  (P.  v.  Eyre  (Leeds 
Assizes),  Times,  Nov.  6th,  1880.) 

Summing-up  and  Verdict. 

The  judge  at  the  conclusion  of  the  case  sums  up  the  evidence  to 
the  jury,  and  directs  the  jury  as  to  the  law.  Before  Fox's  Libel 
Act,  it  had  come  to  be  the  rule  that  the  judge,  not  the  jury,  should 
decide  whether  or  no  the  publication  was  a  libel.  On  proof  of  the 
publication  of  the  innuendoes,  and  of  the  other  necessary  averments, 
the  judge  would  direct  the  jury  to  find  the  defendant  guilty.  (See 
P.  v.  Wood/all,  5  Burr.  2661  ;  P.  v.  Shipley  (Dean  of  St.  Asap>h), 
21  St.  Tr.  1043  ;  3  T.  R.  428,  n.  ;  4  Dougl.  73  ;  P.  v.  Withers,  3  T. 
R.  428.)  But  that  Act  (32  Geo.  III.  c.  60,  s.  1),  declares  and  enacts 
that  on  the  trial  of  an  indictment  or  information  for  libel  the  jury 
may  give  a  general  verdict  of  guilty  or  not  guilty  upon  the  whole 
matter  put  in  issue  before  them.  Or  the  jury  may  in  their  discretion 
find  a  special  verdict  as  in  other  criminal  cases.  (Sect.  3.)  The 
judge  of  course  may  still  direct  the  jury  on  any  point  of  law,  stating 
his  own   opinion  thereon  if  he  think  fit  ;  but  the  question,  libel  or 

(540) 


PROCEEDINGS    AFTER    VERDICT.  469 

no  libel,  must  ultimately  be  decided  by  the  jury.  Fitzgerald,  J., 
thus  addressed  the  jury  in  a  case  of  seditious  libel : — "You  are  the 
sole  judges  of  the  guilt  or  innocence  of  the  defendant.  The  judges 
are  here  to  give  any  help  they  can,  but  the  jury  are  the  judges  of 
law  and  fact,  and  on  them  rests  the  whole  responsibility.  In  this 
sense  the  jury  are  the  true  guardians  of  the  liberty  of  the  press." 
{P.  v.  /Sullivan,  11  Cox,  C.  C.  52.)  The  jury  should  of  course  pay 
attention  to  and  accept  the  judge's  statement  of  the  law,  and  then 
take  the  alleged  libel  into  their  hands,  and  consider  it  carefully  ; 
not  dwelling  too  much  on  isolated  passages,  but  judging  it  fairly  as 
a  whole.  If  the  libel  be  contained  in  a  book  they  may  look  at  the 
rest  of  the  book.  (Per  Lord  Ellenborougli,  in  P.  v.  Lambert  and 
Perry,  2  Camp.  399.  See  also  Cooke  v.  Hughes,  1  R.  &  M.  112,  and 
ante,  pp.  98,  317.)  And  on  the  trial  of  Home  Toohe  for  treason  the 
matter  was  carried  much  further,  for  in  that  case  the  prisoner  was 
allowed  to  read  in  his  defence  various  extracts  from  other  works 
published  by  him  at  a  former  period  of  his  life  ;  and  the  jury  were 
permitted  to  carry  these  along  with  them  when  they  retired  to  con- 
sider their  verdict.  Lord  Ellenborough,  however,  expressed  grave 
doubt  as  to  the  propriety  of  this  course.     (2  Camp.  400.) 

[*605]  Proceedings  after  Verdict. 

If  at  the  trial  the  defendant  is  acquitted,  no  further  proceedings 
can  be  taken  ;  the  verdict  of  the  jury  is  conclusive  in  favour  of  the 
defendant.  (P.  v.  Cohen  and  Jacob,  1  Stark.  516  ;  P.  v.  Mann,  4 
M.  &  S.  337.)  If  the  jury  cannot  agree  they  must  be  discharged 
and  the  prisoner  tried  again,  unless  a  nolle  prosequi  be  entered,  for 
which  the  leave  of  the  Attorney-General  is  necessary.  The  prisoner 
is  apparently  not  entitled  to  be  admitted  to  bail  in  the  interval  be- 
tween the  two  trials.  (P.  v.  Mote,  10  Q.  B.  D.  378  ;  48  L.  T.  394; 
15  Cox,  C.  C.  240.) 

If,  however,  the  defendant  is  convicted,  then,  if  the  judge  before 
whom  the  trial  took  place  has  reserved  any  point  of  law  arising 
thereat  for  the  consideration  of  the  court  above,  he  may  state  a 
case  in  the  matter  pointed  out  by  the  11  and  12  Vict.  c.  78,  s.  2. 
This  case  will  be  argued  in  the  court  for  the  consideration  of  Crowi% 
Cases  Reserved,  when  the  conviction  will  be  either  quashed  or 
affirmed.  If  no  such  point  has  been  reserved,  then  the  prisoner 
may  move  in  arrest  of  judgment,  as  in  a  civil  case  under  the  old 
procedure,  on  the  ground  that  the  words  as  laid  do  not  sufficiently 
appear  to  be  libellous,  or  on  some  other  ground  appearing  on  the 
face  of  the  record.  Power  to  make  this  motion  is  expressly  re- 
served by  Fox's  Libel  Act  (32  Geo.  III.  c.  60,  s.  4).  The  absence 
of  any  essential  introductory  averment  or  innuendo  will  be  a  good 
ground  for  arresting  judgment.  (P.  v.  Shipley  (Dean  of  St. 
Asaph),  21  St.  Tr.  1043  ;  3^T.  R.  428,  n.  ;  4  Dougl.  73  ;  P.  v.  Top- 
ham,  4  T.  R.  126.)  But  mere  formal  defects  cannot  now  be  taken 
advantage  of  in  such  a  motion.  (14  &  15  Vict.  c.  100,  s.  25.)  And 
"  it  is  a  general  rule  of  pleading  at  common  law  that  where  an 
averment  which  is  necessary  for  the  support  of  the  pleadings  is  im- 

(541) 


470  PRACTICE    AND    EVIDENCE. 

perfectly  stated,  and  the  verdict  on  an  issue  involving  that  aver- 
ment is  found,  if  it  appears  to  the  court,  after  verdict,  that  the 
verdict  could  not  have  been  found  on  this  issue  without  proof  of 
this  averment,  then,  after  verdict,  the  defective  averment  which 
might  have  been  bad  on  demurrer  is  cured  by  the  verdict."  {Per 
Blackburn,  J.,  in  Heyman  v.  The  Queen,  L.  R.  8  Q.  B.  105,  100  ; 
21  W.  R.  357  ;  28  L.  T.  162  ;  per  Brett,  L.  J.,  in  P.  v.  Aspinall,  2 
Q.  B.  D.  57,  58  ;  40  L.  J.  M.  C.  145  ;  25  W.  R.  283  ;  30  L.  T.  297. 
See  also  Serjeant  Williams'  note  (1)  to  Stennel  v.  Hogg,  1  Wins. 
Saund.  228  ;  P.  v.  Goldsmith,  L.  R.  2  C.  C.  R.  79  ;  42#L.  J.  M.  C. 
94;  21  W.  R.  791;  28  L.  T.  881.)  In  all  other  cases,  however, 
every  objection  which  could  have  been  taken  by  demurrer  before 
the  jury  were  sworn  may  still  be  taken  either  upon  motion  in  arrest 
of  judgment  or  by  [*000]  writ  of  error.  {Per  Cockburn,  C.  J.,  ii 
Q.  B.  D.  572  ;  and  per  Bramwell,  L.  J.,  3  Q.  P.  D.  024  ;  P.  v. 
Parkin,  Dears.  C.  C.  305  ;  23  L.  J.  M.  C.  125.)  Hence,  if  an  indict- 
ment for  publishing  an  obscene  book  does  not  set  out  the  passage 
or  passages  of  such  book  alleged  to  constitute  the  offence,  but  only 
refers  to  the  book  by  its  title,  this  defect  is  not  cured  by  a  verdict 
convicting  the  defendant,  nor  is  it  waived  by  the  defendant's  omit- 
ting to  demur.  {Pradlaugh  and  Pesant  v.  The  Queen  (C.  A.),  3 
Q.  B.  D.  007  ;  48  L.  J.  M.  C.  5  ;  20  W.  R.  410  ;  38  L.  T.  118  ;  14 
Cox,  C.  C.  68,  overruling  P.  v.  Pradlaugh  and  Pesant,  2  Q.  B.  D. 
569  ;  46  L.  J.  M.  C.  280.)  Where,  however,  an  indictment  or  in- 
formation contains  several  counts,  if  any  one  of  them  be  found 
good,  the  judgment  will  stand.  {P.  v.  Penfield  and  others,  2 
Burr,  985.) 

A  motion  in  arrest  of  judgment  should  be  made  before  sentence 
to  the  judge  at  the  trial,  who  may  reserve  the  point  for  the  con- 
sideration of  the  Court  of  Crown  Cases  Reserved.  If  the  defendant 
omit  to  make  such  motion,  still  the  court  will  of  itself  arrest  the 
judgment,  if  on  a  review  of  the  case  it  be  satisfied  that  the  defendant 
has  not  been  found  guilty  of  any  offence  in  law.  {Per  cur.  in  P.  v. 
Waddington,  1  East,  140.)  On  a  motion  in  arrest  of  judgment  the 
court  has  no  power  to  amend  the  record.  {P.  v.  Parkin,  Dears.  C. 
C.  305  ;  23  L.  J.  M.  C.  125.)  If  the  judgment  be  arrested,  all  the 
proceedings  are  set  aside  and  judgment  of  acquittal  is  given  ;  but 
this  will  be  no  bar  to  a  fresh  indictment,  for  the  defendant  was 
never  really  in  jeopardy  under  the  defective  indictment.  (  Vaux's 
case,  4  Rep.  45a.)  So  if  the  judgment  against  him  be  reversed  on 
a  writ  of  error,  he  can  be  again  indicted  for  the  same  offence.  {P. 
v.  Brury  and  others,  3  C.  &  K.  190  ;  18  L.  J.  M.  C.  189.) 

The  defendant  may  also  bring  a  writ  of  error,  after  conviction 
and  sentence,  on  obtaining  the  fiat  of  the  Attorney-General,  which 
will  be  granted  on  a  certificate  signed  by  the  prisoner's  counsel 
whenever  reasonable  grounds  are  shown.  That  the  same  point  has 
been  raised  by  motion  in  arrest  of  judgment  and  decided  against 
the  prisoner  is  no  bar  to  bringing  error.  {Per  Mellor,  J.,  in  P.  v. 
Pradlaugh  and  Pesant,  2  Q."B.*T>.  574  ;  40  L.  J.  M.  C.  280.)  If 
the  Attorney-General  refuse  to  grant  a  fiat,  the  defendant  has  no 
remedy.     {Ex  parte  Newton,  4  E.  &  B.  809  ;  Pe  Pigott,  11  Cox,  C. 

(54  2) 


SENTENCK.  471 

C.  311.)  If  the  judgment  below  be  reversed,  the  Court  of  Error 
now  has  power  to  pronounce  the  proper  judgment.  (11  &  12  Vict, 
c.  78,  s.  5.) 

When  the  indictment  or  information  either  originated  in  the 
Queen's  Bench  Division  or  lias  been  removed  thither  by  certiorari, 
the  defendant  may  also  move  for  a  new  trial,  as  in  a  civil  case  under 
[*607]  the  old  practice.  The  motion  should  be  made  within  the 
times  specified  in  r.  166  of  the  Crown  Office  Rules,  1886  ;  though 
the  time  may  be  extended  ex  gratia  in  a  proper  case.  (R.  v.  Holt, 
5  T.  R.  436  ;  R.  v.  Newman,  1  E.  &  B.  270  ;  22  L.  J.  Q.  B.  156  ; 
Dears.  C.  C.  85  ;  17  Jur.  617  ;  3  C.  &  K.  252  ;  Crown  Office  Rules, 
167.) 

A  new  trial  may  be  moved  for  on  the  ground  that  the  prosecutor 
omitted  to  give  due  notice  of  trial,  or  that  the  verdict  was  contrary 
to  evidence  or  to  the  direction  of  the  judge,  or  on  the  ground  of 
improper  reception  or  rejection  of  evidence  or  other  mistake  or  mis- 
direction of  the  judge,  or  of  any  gross  misbehaviour  of  the  jury 
among  themselves,  or  for  surprise,  or  for  any  other  cause  where  it 
shall  appear  to  the  court  that  a  new  trial  will  further  the  ends  of 
justice.     (R.  v.   Whitehouse  and  Tench,  Dears.  C.  C.  1.) 

The  prisoner  must  be  present  in  court  when  a  motion  for  a  new 
trial  is  made  and  argued.  (R.  Spragg  and  another,  2  Burrt  929  ; 
R.  v.  Caudwell,  2  Den.  C.  C.  372,  n  ;  Crown  Office  Rules,  169.)  The 
rule  is  generally  argued  therefore  when  the  defendant  is  brought  up 
for  judgment.     (R.  v.  Hetherington,  5  Jur.  529.) 

Where  the  verdict  is  on  the  face  of  it  imperfect,  so  that  judgment 
cannot  be  given  upon  it,  the  court  will  award  a  venire  de  nova 
instead  of  granting  a  new  trial,  the  error  appearing  on  the  face  of 
the  record.  In  such  a  case  the  first  trial  is  a  mis-trial  and  is  treated 
as  a  nullity,  and  the  prisoner  does  not  plead  again.  [Per  Abbott, 
C.  J.,  in  R.  v.  Foxder  and  Sexton,  4  B.  &  Aid.  273,  276.)  A  venire 
de  nova  was  awarded  in  WoodfalPs  case  (5  Burr,  2661),  it  being 
impossible  to  say  what  the  jury  meant  by  finding  him  "  guilty  of 
publishing  only".  (And  see  Campbell  and  another  v.  The  Queen, 
11  Q.  B.  799  ;'  17  L.  J.  M.  C.  89.) 

When  a  motion  for  a  new  trial  is  allowed,  or  a  writ  of  venire 
facias  de  nova  awarded,  the  parties  stand  precisely  as  they  did 
before  the  first  trial,  and  the  whole  of  the  evidence  has  to  be  re- 
heaixl. 

Where  a  new  trial  is  ordered  of  an  indictment  removed  into  the 
Queen's  Bench  Division  by  certiorari,  at  the  instance  of  the  defen- 
dant, the  court  may,  in  its  discretion,  order  that  the  costs  shall  abide 
the  event  of  the  new  trial.  (R.  v.  Whitehouse  and  Tench,  Dears. 
C.  C.  1.) 

Sentence. 

Sentence  is  generally  passed  directly  the  verdict  of  guilty  is  given  ; 
but  not  always,  especially  in  the  Queen's  Bench  Division.  If  not, 
the  defendant  was  formerly  kept  in  custody  till  sentenced  ;  but  now, 
unless  the  case  be  exceptional,  he  is  allowed  out  on  the  same  bail  as 
[*608]    before.      In  the   interval,    the   defendant   frequently   files 

(543; 


472  PRACTICE    AND    EVIDENCE. 

affidavits  in  mitigation  of  punishment,  which  the  prosecutor  may 
answer.  Such  affidavits  may  show  that  the  defendant  reasonably  and 
bona  fide  believed  in  the  truth  of  the  charges  made  in  the  libel,  but 
not  that  the  libel  is  in  fact  true.  (E.  v.  Burdett,  4  B.  &  Aid.  314  ; 
E.  v.  Halpin,  9  13.  &  C.  G5  ;  4  M.  &  R.  8  ;  E.  v.  Newman,  17  J. 
P.  84.).  Or  they  may  contain  general  evidence  of  a  good  character, 
or  disclaim  any  personal  malice  against  the  relator  (E.  v.  Tanjield, 
42,  J.  P.  423),  or  show  that  the  defendant  voluntarily  stopped  the 
sale  of  the  book  complained  of  as  soon  as  proceedings  were  com- 
menced (E.  v.  Williams,  Lofft.  750),  or  any  other  circumstance  show- 
ing provocation  by  the  prosecutor  or  an  absence  of  malice  in  the  de- 
fendant. But  the  defendant  should  be  careful  not  to  attack  the 
character  of  the  prosecutor,  or  his  witnesses,  or  impugn  the  justice 
of  the  verdict,  lest  he  thereby  aggravate  his  original  offence.  A 
memorial  in  his  favour,  not  on  affidavit,  will  not  be  received.  (Per 
Blackburn,  J.,  in  E.  v.  Shimmens,  34,  J.  P.   308.) 

If,  in  the  interval,  since  the  verdict,  the  defendant  has  republished 
the  libel,  or  continued  its  sale,  or  been  guilty  of  other  misconduct, 
the  prosecutor  may  file  affidavits  in  aggravation  of  punishment. 
(See  E.  v.  Withers,  3  T.  R.  428.)  As  to  the  procedure  when  the 
defendant  is  brought  up  for  judgment  see  E.  v  Bunts,  2  T.  R.  683. 
The  defendant  must  be  personally  present,  if  his  state  of  health  will 
permit.  (E.  v  Eyder-Burton,  38  J.  P.  758  ;  E.  v.  Kinglake,  W. 
Notes,  1870,  p.  130.)  If  he  has  absconded,  judgment  apparently 
cannot  be  pronounced  ;  all  the  court  can  do  is  to  entreat  the  rec- 
ognizances. (E.  v.  Chichester,  17  Q.  B.  504,  n  ;  E.  v.  Elizabeth 
Williams  Weekly  Notes,  1870,  p.  120  )  The  judge  in  passing- 
sentence  will  consider  whether  the  guilt  of  the  defendant  is  aggra- 
vated or  mitigated  by  any  plea  of  justification  which  he  may  have 
placed  on  the  record,  and  by  the  evidence  given  to  prove  or  disprove 
the  same.     (6  &  7  Vict.  c.  96,  s.  6  ;  E.  v.  Newman,  17  J.  P.  84.) 

Where  judgment  has  been  suffered  by  default,  both  parties  should 
state  their  case  on  affidavit.  If  there  is  any  matter  in  the  prose- 
cutor's affidavit  which  the  defendant  could  not  be  expected  to  have 
come  prepared  to  answer,  he  will  be  allowed  an  opportunity  of  an- 
swering it  on  a  future  day.  (E.  v.  Archer,  2  T.  R.  203,  n  ;  E.  v. 
Wilson,  4  T.  R.  487.) 

As  to  the  sentence  that  may  be  passed  in  the  case  of  a  defamatory 
libel  at  common  law,  se  ante,  p.  425  ;  under  the  various  statutes,  pp. 
426,  427  ;  in  the  case  of  a  blasphemous  libel,  p.  440  ;  an  obscene 
libel,  p.  471  ;  a  seditious  libel,  p.  479.  If  the  prisoner  be  found 
[*609]  guilty  of  publishing  a  blasphemous  or  seditious  libel,  all  copies 
found  in  his  possession  may  be  seized  and  destroyed  by  an  order  of 
the  court,  under  60  Geo.  III.  &  1  Geo.  IV.  c.  8,  ss.  1,  2. 

Costs. 

In  the  case  of  an  indictment  or  information  by  a  private  prosecu- 
tor the  publication  of  a  defamatory  libel,  if  judgment  shall  be  given 
for  the  defendant,  he  shall  be  entitled  to  recover  his  costs  from  the 
prosecutor.    (6  &  7  Vict.  c.  96,  s.  8.)    Such  costs  must  first  be  taxed 

(544) 


COSTS. 


473 


by  the  proper  officer  of  the  court  before  which  the  said  indictment  or 
information  is  tried  ;  and  this  should  be  done  before  the  next  commis- 
sion of  assize  issues,  if  the  case  was  tried  at  the  Assizes,  else  the  clerk 
of  assize  will  be  functus  officio  ;  his  taxation  cannot  be  reviewed 
by  the  Queen's  Bench  Division.  (R.  v.  Neichovse,  1  L.  &  M.  129  ; 
22  L.  J.  Q.  B.  127  ;  17  J.  P.  57.)  No  special  order  to  tax  is  neces- 
sary, (li.  v.  Sully,  12  J.  P.  536.)  In  the  case  of  an  information, 
the  record  being  in  the  Queen's  Bench  Division,  execution  may  issue 
on  taxation  in  the  ordinary  way.  (11.  v.  Latimer,  15  Q.  B.  1077  ; 
20  L.  J.  P.  B.  129  ;  15  Jur.  314.)  But  in  the  case  of  an  indictment 
not  in  the  Queen's  Bench  Division,  there  is  no  way  of  issuing  execu- 
tion for  such  costs  ;  they  must  be  recovered  therefore  by  an  ordinary 
action  at  law.  (Richardson  v.  Willis,  L.  R.  8  Ex.  69  ;  42  L.  J.  Ex. 
15,  68  ;  27  L.  T.  828  ;   12  Cox,  C.  C.  298,  351.) 

So  if  a  defendant  pleads  a  justification  and  the  issue  be  found 
for  the  prosecutor,  the  prosecutor  may  recover  from  the  defendant  the 
costs  he  has  sustained  by  reason  of  such  plea,  whatever  be  the  result 
of  any  other  issues.     (6  &  7  Vict.  c.  96,  s.  8.) 

But  this  section  does  not  apply  to  crown  prosecutions,  or  to  any 
proceedings  for  blasphemous,  obscene  or  seditious  libels.  And  there 
is  no  provision  enabling  a  prosecutor  to  recover  the  general  costs 
of  the  prosecution.  Sometimes,  however,  if  a  fine  be  imposed  on  the 
defendant  as  part  of  his  sentence,  the  prosecutor  may,  by  memorial- 
izing the  Treasury,  obtain  a  portion  of  the  fine  towards  the  payment 
of  his  costs. 

Where  an  indictment  is  removed  by  certiorari  into  the  Queen's 
Bench  Division  the  party  applying  for  the  writ  (not  being  the  Attor- 
ney-General) must  give  security  for  all  subsequent  costs. 

Where  a  municipal  corporation  have  directed  a  prosecution  for  a 
libel  on  one  of  their  officers,  the  costs  cannot  be  paid  out  of  any 
borough  fund.  (E  v.  Mayor,  &c,  of  Liverpool,  44  L.J.  Q.  B.  175  ; 
20  W.  R.  389  ;  26  L.  T.  101.)  Where  the  directors  of  a  company 
[*610]  have  instituted  a  prosecution  for  a  libel  on  themselves,  the 
costs  should  not  be  paid  out  of  the  assets  of  the  company,  though  the 
directors  will  not  as  a  rule,  be  ordered  to  repay  any  costs  already  so 
paid.  (Pickering  v.  Stephenson,  L.  R.  14  Eq.  322  ;  41  L.  J.  Ch.  493; 
20  W.  R.  654  ;  26  L.  T.  60S.)  But  where  the  libel  is  an  attack  upon 
the  company  itself,  and  calculated  to  injure  its  credit  or  diminish 
its  business,  the  costs  of  a  prosecution  may  rightly  be  paid  out  of  the 
funds  of  the  companv.  (Studdert  v.  Grosvenor,  33  Ch.  D.  528  ;  55 
L.  J.  Ch.  689  ;  34  W.  R.  754  ;  55  L.  T.  171  ;  50  J.  P.  710  ;  ante, 
p  373.) 


(545) 


474  PRACTICE    AND    EVIDENCE. 


PART  II. 


PRACTICE  AND  EVIDENCE    IN  PROCEEDINGS    BY  WAY  OF  CRIMINAL 
INFORMATION. 

Motion  for  the  Order  Nisi. 

An  ex  officio  information  is  filed  by  the  Attorney-General  of  his 
own  motion.  All  other  criminal  informations  are  filed  by  the  Queen's 
coroner  and  attorney,  formerly  called  the  Clerk  of  the  Crown  ;  he 
may  not  file  any  information  without  an  express  order  of  the  Queen's 
Bench  Division  granted  in  open  court.  (4  Wm.  &Mary,  c.  18,  s.  .1  ; 
Crown  Office  Rules,  1886,  r.  46.)  Counsel  must  move  the  court  upon 
proper  affidavits  for  an  order  nisi  calling  upon  the  defendant  to  show 
cause  why  an  information  should  not  be  granted.  The  motion  must 
be  made  within  a  reasonable  time  after  the  offence  complained  of. 
(lb.  r.  48.)  The  former  rule  was  that  the  application  must  he  made 
within  two  terms  after  the  publication,  or  at  all  events  within  two 
terms  after  the  libel  came  to  the  knowledge  of  the  prosecutor.  The 
prosecutor,  too,  must  come  to  the  court  in  the  first  instance,  and 
must  not  have  attempted  to  obtain  redress  in  other  ways.  (R.  v.  Mar- 
shall, 4  E.  &  B.  475,  ante,  p.  431.)  He  must  submit  himself  to  the 
court,  and  consent  to  waive  his  civil  remedy  by  action,  if  need  be, 
and  must  be  prepared  to  go  through  with  the  criminal  proceedings 
to  conviction.  It  is  unnecessary  to  obtain  the  fat  of  the  Director  of 
Public  Prosecutions  in  England  or  of  the  Attorney-General  in  Ire- 
land before  moving,  as  section  3  of  the  Newspaper  Libel  and  Regis- 
tration Act  does  not  apply  to  any  application  for  a  criminal  infor- 
mation whether  ex  officio  or  otherwise.  ( Yates  v.  The  Queen,  (C. 
A.)  14  Q.  B.  D.  648  ;  [*61l]  54  L.  J.  Q.  B.  258  ;  33  W.  R.  482  ; 
52  L.  T.  305  ;   15  Cox,  C.  C.  686  ;  49  J.  P.  436.) 

The  affidavits  on  which  the  application  is  based  should  be  care- 
fully drawn  up  ;  as  no  second  application  may  be  made  on  amended 
or  additional  affidavits.  (R.  v.  Franceys,  2  A.  &  E.  49.)  They 
should  in  the  first  place  prove  the  publication  by  the  defendant. 
Mere  prima  facie  evidence  of  this  will  not  be  sufficient.  (R.  v. 
Baldwin,  8  A.  &  E.  168  ;  R.  v.  Willett,  6  T.  R.  294.)  There  must  be 
before  the  court  legal  evidence  sufficient  to  justify  a  grand  jury  in 
returning  a  true  bill  for  the  same  offence.  Thus,  in  R.  v.  Stanger, 
L.  R.  6  Q.  B.  352  ;  40  L.  J.  Q.  B.  96  ;  19  W.  R.  640  ;  24  L.  T.  266, 
the  affidavits  merely  showed  that  the  annexed  copy  of  the  Newcastle 
Daily  Chronicle,  the  newspaper  containing  the  libel,  had  been  pur- 
chased from  a  salesman  in  the  office  of  that  paper,  and  that  in  a  foot- 
note at  the  end  of  that  copy  the  defendant  was  stated  to  be  the 
printer  and  publisher  of  the  newspaper,  and  the  relator  believed  him 
so  to  be  ;  it  was  held  that  this  was  no  legal  evidence  of  publication, 
and  the  rule  was  discharged.  If  the  defendant  keeps  an  office  or 
shop  at  which  copies  of  the  paper  can  be  purchased,  then  an  affida- 
vit by  a  person  who  purchased  a  copy  of  the  libel  at  such  office  or 

(546) 


ARGUMENT.  475 

shop  will  be  the  best  evidence  of  a  publication  by  the  defendant, 
and  also  that  most  easily  obtainable.  That  the  purchase  was  made 
expressly  for  the  purpose  of  enabling  such  affidavit  to  be  sworn  is 
no  objection.  (Duke  of  Brunswick  v.  llarmer,  14  Q.  B.  189  ;  19 
L.  J.  Q.  11  20  ;   14  Jur.  110  ;  3  C.  &  K.  40.) 

It  is  a  doubtful  point  whether  the  omission  of  such  strict  proof  of 
publication  can  subsequently  be  supplied  by  the.  admission,  if  any,  in 
the  defendant's  affidavits  filed  to  show  cause  against  the  order  being 
made  absolute.  The  courts  have  generally  refused  to  look  at  defen- 
dant's affidavits  to  supply  a  defect  in  those  of  the  prosecutor.  ( A', 
v.  Baldwin,  8  A.  &  E.  169.)  For  the  rule  is  that  the  prosecutor 
can  at  the  argument  refer  to  no  document  which  does  not  appear  on 
the  face  of  the  order  itself  to  have  been  read  at  the  first  application. 
(B.  v.  Woolmer  and  another,  12  A.  &  E.  422.)  But  Lord  Kenyon, 
in  B.  v.  Mein,  3  T.  R.  597,  and  Blackburn,  J.,  in  B.  v.  Stanger, 
L.  R.  6  Q.  B.  355  ;  40  L.  J.  Q.  B.  90  ;  19  W.  R.  640  ;  24  L.  T.  266, 
expressed  an  opinion  that  the  court  might  look  at  any  evidence  law- 
fully before  them  for  any  purpose  they  pleased. 

The  prosecutor  must  also  swear  to  his  innocence  in  all  particulars 
of  the  charge  contained  in  the  libel.  (B.  v.  Webster,  3  T.  R.  388.) 
For  although  at  the  trial  of  the  information  when  granted  truth 
will  be  no  "defence,  except  under  Lord  Campbell's  Act,  still  it  is 
"  sufficient  cause  to  prevent  the  interposition  of  the  court  in  this 
extraordinary  man[*612]  ner  ;"  they  will  leave  the  prosecutor  to 
proceed  by  way  of  indictment  in  the  ordinary  course.  (B.  v.  Bick- 
erton,  1  Stra.  498  ;  B.  v.  Draper,  3  Smith,  390.) 

If  there  is  no  specific  charge  in  the  libel,  no  such  affidavit  is  neces- 
sary (B.  v.  Williams,  5  B.  &.Ald.  595),  and  it  has  also  been  dis- 
pensed with  in  other  special  circumstances.  But  as  a  rule  there 
must  be  a  specific  denial  on  oath  of  the  particular  charges,  even 
where  it  is  a  duke  that  is  aspersed.  (B.  v.  Ilaswell  and  Bate,  1  Dougl. 
387.)  If  a  general  charge  be  made  and  a  specific  instance  alleged, 
the  affidavit  must  expressly  negative  not  only  the  general  charge, 
but  also  the  specific  instance.     (B.  v.  Aunger,  12  Cox,  C.  C.  407.) 

The  affidavits  should  be  sworn  with  no  heading  or  title.  They 
should  not  contain  irrelevant  or  improper  matter  ;  if  the  prosecutor 
abuses  the  alleged  libeller  or  shows  an  animus  against  him,  the  court 
will  very  probably  reject  the  application.  (R.  v.  Bum,  7  A.  &  E. 
190.) 

The  order  nisi,  if  granted,  should  be  drawn  up  "  Upon  reading  " 
the  alleged  libel  and  the  affidavits  and  all  other  documents  to  which 
it  is  desired  to  refer  on  the  argument.  It  should  be  personally 
served  on  the  defendant. 

Argument. 

The  defendant  now  shows  cause.  He  generally  files  affidavits  in 
reply.  It  is  open  to  him  to  maintain  that  the  libel  is  true.  (B.  v. 
Eve  and  Parlby,  5  A.  &  E.  780  ;  1  K  &  P.  229.)  See  ante,  p.  611.) 
He  may  also  contend  that  the  libel  complained  of  did  not  apply  to 
the  relator.  (B.  v.  Barnard,  Ex  parte  Lord  B.  Gower,  43  J.  P. 
127,  ante,  p.  133.)     This  decision  is  perhaps  to  be  regretted  ;  as  it 

(547) 


476  PRACTICE    AND    EVIDENCE. 

opens  a  door  by  which  a  libeller  may  escape  punishment,  provided 
be  is  careful  not  to  expressly  name  his  victim  in  the  first  place,  and 
not  too  scrupulous  to  swear  a  falsehood  afterwards.  The  writer  of  a 
libel  may  richly  deserve  punishment  although  it  may  not  be  clear 
to  whom  he  intended  the  libel  to  apply  ;  and  the  court  in  granting 
a  criminal  information  regards  the  interests  of  public  morality  and 
order  rather  than  those  of  the  individual  prosecutor.  (See  3  Times 
L.  R.  255.) 

If  the  order  be  discharged  on  the  merits,  the  court  generally  gives 
the  defendant  his  costs.  And  no  second  application  may  be  made  to 
the  court,  even  upon  additional  affidavits  {li.  v.  Smithson,  4  B.  &  Ad. 
862),  except  in  very  peculiar  circumstances,  as  where  the  only  person 
who  had  made  an  affidavit  on  behalf  of  the  defendant  on  the  argu- 
ment of  the  first  order  has  since  been  convicted  of  perjury  in  respect 
of  such  affidavit.  {R.  v.  Eoe  and  Parlby,  5  A.  &  E.  780  ;  1  N.  &  P. 
[*613]  229.)  But  though  the  prosecutor  cannot  apply  a  second 
time  for  a  criminal  information,  he  can  still  prefer  an  indictment  in 
the  ordinary  way  {per  Lord  Denman,  in  R.  v.  -Cockskaw,  2  N.  & 
Man.  378)  ;  though  he  cannot  as  a  rule  bring  an  action  {ante,  p. 
458.) 

Compromise. 

Frequently,  however,  the  defendant  files  exculpatory  affidavits, 
apologizing  to  the  prosecutor,  withdrawing  all  imputations  upon 
him,  and  entreating  the  mercy  of  the  court.  When  this  happens, 
the  prosecutor  is  generally  quite  satisfied  ;  he  has  obtained  all  he 
desired  :  and  by  no  means  courts  the  expense  and  notoriety  of  a 
prolonged  criminal  trial.  But  the  court  is  not  disposed  on  that 
account  merely  to  allow  the  proceedings  to  drop,  even  at  the  request 
of  the  prosecutor  ;  and  in  more  than  one  recent  case  the  Queen's 
Bench  Division  have  compelled  a  reluctant  prosecutor  to  take  a  rule 
in  the  interest  of  the  public.  Having  invoked  the  aid  of  the  crimi- 
nal law,  it  is  his  duty  not  to  abandon  the  proceedings  merely 
because  his  own  private  purpose  is  attained.  (See  R.  v.  "  The 
World;'  13  Cox,  C.  C.  305.) 

Trial  and  Costs. 

If  the  order  be  made  absolute,  the  prosecutor  must  enter  into  a 
recognizance  to  effectually  prosecute  the  information  and  to  abide 
by  and  observe  the  order  of  the  court.  The  amount  of  recogniz- 
ance is  fixed  by  r.  46  of  the  Crown  Office  Rules,  1886,  at  £50.  (But 
see  4  Wm.  &  M.  c.  18,  s.  1,  and  R.  v.  Brooke,  2  T.  R.  190.) 

The  information  must  set  out  the  libel,  &c,  with  all  the  certainty 
and  precision  of  an  indictment.  (See  Precedents  Nos.  93,  96,  post, 
pp.  673,  676.)  As  soon  as  it  is  filed  a  copy  must  be  served  on  the 
defendant.  The  defendant  must  appear  thereto  within  the  times 
specified  in  rr.  83 — 89  of  the  Crown  Office  Rules,  1886  ;  and  see  r. 
44.  If  he  does  not  he  maybe  attached  under  a  judge's  warrant  (48 
Geo.  III.  c.  58,  s.  1).  After  appearance  the  defendant  has  ten  days 
within  which  to  plead  or  demur.   (Crown  Office  Rules,  1886,  r.  131.) 

(548) 


TRIAL    AND    COSTS.  477 

His  plea  is  duly  entered  on  the  record,  which  is  then  made  up  and 
sent  down  for  trial  to  the  county  in  which  the  libel  was  published, 
unless  a  trial  at  bar  be  demanded.  The  record  may  be  amended  by 
a  judge  at  chambers  after  plea  and  before  trial.  (A',  v.  Wilkes 
(1764 — 1770)  4  Burr.  2568;  2  Wils.  151.)  The  trial  of  an  infor- 
mation for  libel  in  all  respects  resembles  the  trial  of  an  indictment  ; 
save  that  in  ex  officio  informations,  the  counsel  for  the  Crown 
(whether  the  Attorney-General  [*  614]  himself  or  any  one  appear- 
ing for  him),  has  the  right  to  reply,  although  the  defendant  calls  no 
witness.  {R.  v.  ILome,'-20  How.  St.  Tr.  660  ;  1 1  St.  Tr.  264  ;  Cowp. 
672.)  The  trial  must  take  place  within  one  year  after  issue  joined  ; 
and  if  not,  or  if  the  prosecutor  enters  a  nolle  prosequi,  the 
court,  on  motion  for  the  same,  may  award  the  defendant  his 
costs  to  the  amount  of  the  recognizance  entered  into  by  the  prose- 
cutor on  filing  the  information.  (Crown  Office  Rules,  1886,  r.  49.) 
If  on  any  information  by  a  private  prosecutor  for  the  publication 
of  any  defamatory  libel,  judgment  shall  be  given  for  the  defendant, 
he  shall  be  entitled  to  recover  from  the  prosecutor  the  costs  sus- 
tained by  the  said  defendant  by  reason  of  such  information,  {lb.  r. 
50.)  And  the  judge  at  the  trial  can  not  in  this  case  deprive  the 
successful  defendant  of  his  costs  by  certifying  that  there  was  reason- 
able cause  for  the  information.  (R.  v.  Latimer,  15  Q.  B.  1077  ;  20 
L.  J.  Q.  B.  129  ;  15  Jur.  314.)  The  master  of  the  Crown  Office 
taxes  the  costs  under  a  side-bar  rule  ;  and  he  may  allow  costs 
incurred  by  the  defendant  previously  to  the  filing  of  the  informa- 
tion. (E.  v.  Steel  and  others,  1  Q.  B.  D.  482  ;  45  L.  J.  Q.  B.  391  ; 
24  W.  R.  638  ;  34  L.  T.  283  ;  13  Cox,  C.  C.  159  ;  (C.  A.)  2  Q.  B. 
D.  37  ;  46  L.  J.  M.  C.  1  ;  25  W.  R.  34  ;  36  L.  T.  634.)  On  such 
taxation  execution  issues  in  the  ordinary  way.  (7?.  v.  Latimer,  ubi 
supra.)  There  is  no  power,  however,  to  condemn  the  defendant  to 
pay  the  cost  of  the  prosecution,  if  he  be  convicted  or  plead  guilty, 
unless  indeed  he  files  a  special  plea  of  justification  under  Lord 
Campbell's  Act,  in  which  case  he  will  have  to  pay  the  costs  incurred 
by  reason  of  that  plea.  (See  6  &  7  Vict.  c.  96,  s.  8,  p>ost,  p.  718  ; 
andr.  50  of  Crown  Office  Rides,  1886.-) 


(549) 


APPENDIX  A. 


t*615  PRECEDENTS  OF  PLEADINGS. 

CONTENTS. 

I.     Pleadings  in  Actions  of  Libel  and  Slander. 

Statements  of  Claim. 

1.  Character  of  a  Servant. 

2.  Words  in  a  Foreign  Language. 

3.  Libellous  Placard. 

4.  Reading  a  Libel  aloud. 

5.  Showing  an  Anonymous  Letter.     (Special  Damage.) 

6.  Libel  on  a  Town  Clerk. 

7.  Libel  on  a  Solicitor.     (Injunction.) 

8.  Libel  on  a  firm  of  Architects. 

9.  Words  imputing  a  Crime.  «,.,,* 

10.  Words  imputing  a  Contagious  Disorder.     (Special  Damage.) 
1L  Slander  of  a  Clergyman. 

12.  Slander  of  a  Medical  Man. 

13.  Slander  of  a  Solicitor.     (Injunction.) 

14    Slander  of  a  Trader  in  the  way  of  his  Trade.     (Special  Damage.) 

15.  Ditto.  Ditto.  Ditto. 

16.  Words  imputing  Insolvency.     (Special  Damage.) 

17  Words  not  Actionable  without  proof  of  Special  Damage. 

18.  Action  by  Husband  and  Wife  for  Slander  of  the  Wife. 

19.  Notice  of  Action. 

20.  Summons  for  Particulars. 

21.  Particulars. 

Defences,  &c. 

22.  Traverses. 

23.  Ditto. 

24.  Objection  in  point  of  Law. 

r*6161  25.  Bond  fide  comment  on  a  matter  of  Public  Interest. 

26.  Ditto.  Ditto. 

27  Ditto.  Ditto. 

28.  Ditto.  Ditto.  (Correction.) 

29!  Reply  to  No.  28. 

30.  No  Publication.     (No  Slander.) 

31.  No  Conscious  Publication.     (Newsvendor.) 

32.  Reply  to  No.  31. 

33.  Innoc  mt  Publication  of  a  Libellous  Novel. 

34.  No  Conscious  Publication.     (Madness.) 

35.  Words  spoken  in  jest. 

36.  Justification. 

37.  Justification  of  the  words  without  the  alleged  meaning. 

38.  Justification  of  a  portion  of  a  Libel. 
89.  Reply  thereto. 

40.  Justification  and  Privilege. 

(550) 


CONTENTS.  479 

41.  Absolute  Privilege.     (Litigant  in  person.) 

42.  Absolute  Privilege.     (Witness.) 

43.  Absolute  Privilege.     (Military  Duty.) 

44.  Answer  to  Confidential  Inquiries. 

45.  Master  and  Servant. 

46.  Adviee  to  one  about  to  Marry. 

47.  Communication  Volunteered. 

48.  Offer  of  Reward  for  Discovery  of  (Mender. 

49.  Complaint  of  Plaintiff's  misconduct. 

50.  Claim  of  right. 

51.  Reply  thereto. 

52.  Self-Defence. 

53.  Common  Interest.     (Church  Members.) 

54.  Members  of  the  same  Committee. 

55.  Competitors  at  the  same  Show. 

56.  Vendor  and  Purchaser. 

57.  Report  of  a  Judicial  Proceeding. 

58.  A  shorter  form. 

59.  Report  published  as  a  Pamphlet.      , 

60.  Report  of  a  Public  Meeting. 

61.  Reply  thereto. 

62.  Statute  of  Limitations. 

63.  Previous  Action. 

64.  Accord  and  Satisfaction. 

65.  Ditto. 

66.  Payment  into  Court. 

67.  Words  spoken  by  the  Defendant  when  drunk. 

68.  Payment  into  Court  and  Particulars  under  Order  XXXVI.  r.  37. 

69.  Pleading  an  Apology. 

70.  Reply  thereto. 

71.  Notice  under  s.  1  of  Lord  Campbell's  Act. 

72.  Plea  under  s.  2  of  Lord  Campbell's  Act. 

Interrogatories  and  Answers. 

[*617]  73.  Interrogatories  in  Lefroy  v.  Burnside. 

74.  Interrogatories  in  Carter  v.  Leeds  Daily  News  Co.  and  Jackson. 

75.  Interrogatories  in  Bedford  v.    Colt. 

76.  Answers  thereto. 

77.  Interrogatories  in  Jones  v.  Richards. 

78.  Answers  thereto. 

II.  Pleadings  in  Actions  for  Slander  of  Title. 

79-84.  Pleadings  in  the  case  of  The  Western  Counties  Manure  Co  v.  TJie  Lawes 
Chemical  Manure  Co. 

79.  Declaration. 

80.  Pleas. 

81.  Republication  and  Demurrer. 

82.  Joinder  in  Demurrer. 

83.  Plaintiff's  points  upon  the  argument  of  the  Demurrer. 

84.  Interrogatories. 

85.  Slander  of  Title  to  Goods.     (Statement  of  Claim.) 

86.  Defence  thereto. 

87.  Libel  in  the  nature  of  Slander  of  Title.     (Statement  of  Claim.) 

III.    Forms  of  Pleadings,  Notices,  etc,  in  the  County  Court. 

88.  Statement  of  the  Plaintiff's  Cause  of  Action  in  a  remitted  Action. 

89.  Notice  of  Trial  of  such  remitted  Action. 

90.  Notice  of  Special  Defence. 

91.  Notice  under  Lord  Campbell's  Act,  s.  1. 

92.  Notice  under  Lord  Campbell's  Act,  s.  2. 

V551) 


480  CONTENTS. 

IV.    Precedents  of  Criminal  Pleadings. 

93.  Information  for  a  Libel  on  a  Private  Individual.     (R.  v.  Newman.) 

94.  Pleas  thereto. 

95.  Replication. 

96.  Ex  Officio  Information  for  a  Seditious  Libel.     (R.  v.  Home) 

97.  Indictment  for  a  Blasphemous  Libel. 

98.  Indictment  for  an  Obscene  Libel. 

99.  Indictment  for  Seditious  Words. 

100.  Indictment  for  Slanderous  Words  spoken  to  a  Magistrate  whilst  in  the 

execution  of  his  Duty 

101.  Indictment  for  a  Libel  on  a  private  Individual  at  Common  Law. 

102.  Indictment  for  a  Libel  on  a  Dead  Man. 

103.  Indictment  under  s.  4  of  Lord  Campbell's  Act. 

104.  Indictment  under  s.  5  of  Lord  Campbell's  Act. 

105.  Demurrer  to  an  Indictment  or  Information. 

106.  Joinder  in  Demurrer. 

107.  Pleas  to  an  Indictment.     (R.  v.  Niblett.) 

108.  Replication  to  the  above  Pleas.. 

109.  Demurrer  to  a  Plea. 

110.  Joinder  in  Demurrer. 


(552) 


I.  PRECEDENTS  OF  PLEADINGS  IN  ACTIONS  OF  LIBEL 
AND  SLANDER. 

Statements  of  Claim. 

No.   1. 
[*6i8]  Character  of  a  Servant. 

1886.— J.— No.   1986. 
In  the  High  Court  of  Justice, 
Queen's  Bench  Division. 

Writ  issued  on  the   13th  day  of  Dec.  1886; 
Between  Sarah  Jones         ....     Plaintiff, 

and 
Henry  Roberts 
and  Alice  his  wife     .         .         .        Defendants. 

Statement  of  Claim. 

1.  The  male  defendant  is  a  gentleman  residing  at Hall  near 

Evesham  in  the  county  of  Worcester,  and  the  female  defendant  is 
his  wife.  The  plaintiff'  is  a  housemaid  and  was  formerly  in  the 
service  of  the  defendants  in  that  capacity. 

2.  On  the  15th  day  of  September  1886  the  female  defendant 
falsely  and  maliciously  wrote  and  published  of  the  plaintiff  the 
words  following,  that  is  to  say  : — "  While  she  (meaning  thereby  the 
plaintiff)  was  with  us,  she  stole  a  quantity  of  our  house-linen,  and 
pawned  it  in  the  High  Street."  * 

The  plaintiff  claims  £200  damages. 
Place  of  trial  :  Gloucester. 

(Signed) . 

Delivered  the  15th  day  of  Jan.  1887. 


[*619j  No.  2. 

Words  in  a  Foreign  Language. 

1.  The  plaintiff  is  a  farmer  residing  at in  the  county  of 

Glamorgan. 

2.  On  the day  of 1886  the  defendant  falsely  and 

maliciously  wrote  [or  spoke]  and  published  of  the  plaintiff  in  the 
Welsh  language  the  words  following,  that  is  to  say  : — [Here  set  out 
the  libel  verbatim  in  Welsh.] 

3.  The  said  words  mean  in  English,  and  were  understood  by  those 

*  No  innuendo  is  necessary. 
31  LIB.  &  SLAN.  (553) 


482  PRECEDENTS    OF    PLEADINGS,    ETC. 

to  whom  they  were  published  [or  those  who. heard  them]  to  mean: — 
[Here  set  out  the  translation.] 

Or  if  an  innuendo  is  necessary  as  well  as  a  translation  : 

3.  The  following  is  a  literal  translation  of  the  said  words  : — "  He 
is  a  devil  of  a  shaved  pig."  The  defendant  meant  thereby,  and 
those  who  read  \or  heard]  the  said  words  understood  him  to  mean 
thereby  that  the  plaintiff  was  insolvent  and  had  been  stripped  of 
his  last  penny  and  was  unable  to  pay  his  just  debts. 

4.  Whereby  the  plaintiff  was  much  injured, in  his  credit  and 
reputation,  &c.  [Add  any  special  damage  that  may  exist.] 

And  the  plaintiff  claims  £ damages. 


No.  3. 
Libel  contained  in  a  Placard. 

1.  The  plaintiff  is,  &c. 

2.  The  defendant  on  or  about  the  10th  day  of  January  1887 
falsely  and  maliciously  caused  to  be  printed  and  published  a  certain 
libellous  placard  referring  to  the  plaintiff  as  follows: — [Here  set  out 
the  placard.] 

3.  The  defendant  caused  one  of  such  placards  to  be  posted  up 
opposite  the  plaintiff's  shop,  and  several  others  in  its  immediate 
neighborhood. 

4.  The  plaintiff  has  in  consequence  suffered  much  annoyance,  and 
has  been  disgraced  and  subjected  to  loss  of  reputation  and  of  busi- 
ness, and  has  suffered  in  his  credit  and  good  name,  and  has  incurred 
public  odium  and  contempt. 

The  plaintiff  claims  £1,000  damages. 


[*620]  No.  4. 

Action  for  Reading  a  Libel  cdoud. 
M.  and  Wife  v.  JSf.  and  Wife. 

1.  On  the  8th  day  of  November  1886  the  following  anonymous 
letter  appeared  in  the  "  Dover  Express  "  : — 

[The   letter  described  a  brutal    assault  on  a  child  by  a  tipsy 
woman,  who  was  not  in  any  way  identified.] 

2.  Thereupon  the  female  defendant  called  the  attention  of  the 
plaintiff's  mother  to  the  said  letter,  and  referring  to  the  said  letter 
falsely  and  maliciously  spoke  and  published  of  the  plaintiff  Mary 
the  words  following,  that  is  to  say  : — "  The  woman  referred  to  in 
that  letter  is  Henry's  wife." 

3.  The  female  defendant  meant  thereby  that  the  plaintiff  Mary 
had  cruelly  and  brutally  and  with  inhuman  violence  assaulted  and 

V554) 


STATEMENTS    OF    CLAIM.  483 

ill-treated  her  own  child,  and  that  she  had  been  guilty  of  an  indict- 
able offence. 

4.  Alternatively,  the  female  defendant  falsely  and  maliciously 
published  of  the  plaintiff  Mary  the  said  libellous  words  set  out  in 
paragraph  1  above,  by  showing  them  to  the  plaintiffs  mother  and 
reading  them  aloud  to  her,  representing  to  her  that  the  woman 
therein  referred  to  was  the  plaintiff  Mary,  meaning  thereby  the  plain- 
tiff Mary  had  been  guilty  of  a  brutal  and  inhuman  assault  upon  her 
own  child,  and  that  she  had  been  drunk  in  one  of  the  public  streets 
of  Dover. 

And  the  plaintiffs  claim  £1,000  damages. 


.  No.  5. 
Shoioing  an  Anonymous  Letter — Special  Damage. 
Robshaw  v.  Smith,  38  L.  T.  423,  ante,  pp.  207,  208. 

"  1.  The  defendant  is  the  general  manager  of  the  London  and 
Yorkshire  Bank  (Limited),  and  the  plaintiff  carries  on  business  as  a 
merchant  at Street,  in  the  City  of  London. 

"  2.  Prior  to  the  31st  of  May  1877  the  plaintiff  had  had  consider- 
able business  transactions  with  one  J.  H.,  also  a  merchant,  from 
which  he  had  derived  large  profits,  and  several  such  transactions 
were  then  in  progress  between  the  plaintiff  and  the  said  J.  H.,  and 
the  said  [*621j  J.H.  would  have  continued  to  have  such  transactions 
with  the  plaintiff  hereinafter  referred  to,  and  the  said  J.  H.  had 
offered  the  plaintiff  to  take  him  into  his  employment  as  manager, 
upon  terms  which  wrould  have  given  the  plaintiff  a  salary  of  from 
£3,000  to  £4,500  per  annum  for  his  services. 

"  3.  On  the  31st  May  the  said  J.  H.  called  upon  the  defendant, 
and  the  defendant  then   falsely  and  maliciously  published  to  the 
said  J.  H.  the  following  letter  of  and  concerning  the  plaintiff: — 
[Here  copy  letter.] 

"  4.  Owing  to  the  conduct  of  the  defendant  set  forth  in  the 
preceding  paragraph,  the  said  J.  H.  refused  to  have  any  further 
transaction  with  the  plaintiff,  and  the  plaintiff  lost  the  profits  he 
would  otherwise  have  made  thereby,  and  the  said  J.  H.  also  refused 
to  take  the  plaintiff  into  his  employment  as  he  would  otherwise 
have  clone,  and  the  plaintiff  has  lost  the  benefit  of  such  employ- 
ment and  the  emoluments  thereof,  and  has  been  much  injured 
in  his  credit,  reputation  and  business,  and  has  been  otherwise 
damnified. 

"  The  plaintiff  claims  £2,000  damages." 


No.  6. 
Libel  on  a  Town  Clerk. 


"  I.  The  plaintiff  has  been  for  thirty -three  years,  and  was  at  the 
time  of   the  writing  and  publication  of  the  libel  hereinafter  com- 

i555i 


484  '  PRECEDENTS    OF    PLEADINGS,    ETC. 

plained  of,  town  clerk  of  the  parliamentary  and  municipal  borough 

of  in  the  county  of ,  and  has  for  many  years  practised 

as  a  solicitor  within  the  said  borough,  and  held  various  appointments 
therein. 

"  2.  The  defendant  is  a  member  of  the  town  council  of-  the  said 
borough. 

"3.  On  the  12th  October  1886  the  defendant  falsely  and 
maliciously  wrote  and  caused  to  be  printed  and  published  of  the 
plaintiff  in  respect  of  his  said  oih'ce  of  town  clerk  in  a  newspaper 

called  the   ' Gazette,'  which  has ,  a  wide  circulation  in  the 

said  borough,  the  words  following,  that  is  to  say — [here  set  out  the 
libel  verbatim']  :  meaning  thereby  that  the  plaintiff  had  been  guilty 
of  gross  misconduct  in  the  discharge  of  his  official  duties,  and  had 
acted  as  such  town  clerk  in  a  manner  which  was  unjustifiable 
and  discreditable  to  him,  and  had  not  been  neutral,  impartial  and 
without  respect  of  person  or  party  in  the  discharge  of  his  said 
duties,  but  had  been  [*  622]  actuated  by  improper,  partial  and  cor- 
rupt motives  therein,  and  had  lost  and  was  losing  the  respect, 
confidence  and  support  of  his  fellow-townsmen. 

"  4.  By  reason  of  the  premises  the  plaintiff  has  been  injured  in 
his  character  and  reputation,  and  has  suffered  damage. 

"  The  plaintiff  claims  £1,000  damages." 


No.  V. 
Libel  on  a  Solicitor — Injunction. 

"  1.  The  plaintiff  is  a  solicitor  and  the  senior  partner  in  the  firm 
of  W.,  G.  &  T.,  which  carries  on  an  extensive  practice  in  the  coun- 
ties of .     The  plaintiff  holds  many  public  appointments  ;  he 

is  election  agent  for ,  &c. 

"2.  On  Jan.  9th  1886  the  defendant  falsely  and  maliciously 
spoke  and  published  of  the  plaintiff,  as  such  solicitor  and  election 
agent  as  aforesaid,  and  of  and  concerning  his  practice  and  profes- 
sion and  his  mode  of  conducting  the  said  recent  election,  and  caused 
to  be  widely  circulated  throughout  the  said  counties,  the  words 
following,  that  is  to  say  : — 

[Here  set  out  the  alleged  slander,  adding  any  innuendoes  which  may 
be  necessary.] 

"  3.  Subsequently  the  defendant  falsely  and  maliciously,  and 
with  intent  still  further  to  wound  and  annoy  the  plaintiff,  and  to 
injure  him  in  his  said  profession,  caused  a  report  of  his  speech,  set 
out  in  paragraphs  above,  to  be  reprinted  from  a  newspaper  called 

'The —  Post,'  and  published  of  the  plaintiff  as  aforesaid,  and 

with  the  meaning  aforesaid,  in  the  shape  of  a  leaflet  or  sheet  for 
distribution.  This  report  was  (omitting  for  the  sake  of  brevity 
certain  words  appearing  in  the  original  at  the  place  marked  with 
asterisks)  as  follows  : — 

"  '  Those   gentlemen '    (meaning   the    plaintiff   amongst  others) 
'  who  had  worked  against  him  '  (meaning  thereby  the  defendant), 
'    ■  (556) 


STATEMENTS    OF    CLAIM.  485 

'and  unfairly  worked  against  him,  had  worked  not  so  much  against 
him  as  against  their  own  cau.se.  *  *  *  It  was  his  fervent  hope  and 
prayer,  &c.  *  *  *  ' 

"4.  The  defendant  has  caused  the  said  leaflet  to  be  very  widely 
circulated  in  the  said  counties  on  the  2ls1  and  22nd  days  of  January 
1880,  and  still  continues  to  circulate  and  distribute  the  same. 

[~*02:3j  "  Whereby  the  plaintiff  has  been  injured  in  his  credit  and 
reputation,  and  in  liis  said  practice  or  profession,  and  has  otherwise 
been  much  injured  and  damnified. 
"And  the  plaintiff  claims  : — 
.  "  ( 1 )  Damages  £2,000. 
"(2)  An  injunction  to  restrain   the  defendant   and    his  agents 
from  further  circulating,  distributing  or  otherwise  publishing, 
the  said  leaflet,  or  any  other  reprint  of  the  said  speech,  or  any 
further  or  other  libels  affecting  the  plaintiff  in  his  profession 
and  offices  or  otherwise." 


No.  8. 
Libel  on  Architects  in  the  way  of  their  Profession. 

BOTTERILL    AND    ANOTHER    V.  WhYTEHEAD,    41    L.  T.    588. 

1.  The  plaintiffs  are   brothers  carrying   on  in  partnership  at 
the  profession  and  business  of  architects. 


"  2.  At  or  about  the  time  of  the  writing  and  publishing  of  the 
libels  hereinafter  complained  of,  the  plaintiffs  were,  as  the  defendant 
well  knew,  employed  by  a  committee  formed  for  the  restoration  of 
a  church  at  at  South  Skirlaugh,  near  Hull,  to  superintend  and  carry 
out  the  restoration  of  the  said  church,  and  were  appointed  by  the 
said  committee  as  architects  for  that  purpose. 

"  3.  On  the  8th  April  1878  after  the  appointment  of  the  plaintiffs 
as  such  architects  as  aforesaid,  the  defendant  in  a  letter  written  and 
sent  to  Mr.  Bethel,  a  member  of  the  said  committee,  falsely  and 
maliciously  wrrote  and  published  of  the  plaintiffs,  in  relation  to  their 
profession  and  business  of  architects,  and  the  carrying  on  and  con- 
ducting thereof  by  them,  the  words  following,  that  is  to  say  : — 

"  '  I  see  in  the  "'  Hull  News'  of  Saturday  that  the  restoration  of 
Skirlaugh  Church  has  fallen  into  the  hands  of  an  architect  who  is  a 
Wesleyan,  and  can  show  no  experience  in  church  work.  Can  you 
not  do  something  to  avert  the  irreparable  loss  which  must  be  caused 
if  any  of  the  masonry  of  this  ancient  gem  of  art  be  ignorantly 
tampered  with.  Your  great  influence  would  surely  have  much 
weight  in  the  matter.' 

"Meaning  thereby  that  the  plaintiffs  were  incompetent  to  super- 
intend and  carry  out  the  restoration  of  the  said  church,  and  that,  if 
the  [*624]  restoration  wrere  left  in  the  hands  of  the  plaintiffs,  the  old 
masonry  of  the  church  would  be  ignorantly  tampered  with  and 
would  not  be  treated  with  proper  spirit  and  feeling,  and  would 
suffer  from  their  incompetence  and  want  of  skill. 

(557) 


486  PRECEDENTS    OF    PLEADINGS,    ETC. 

"4.  On  or  about  the  10th  April  1878,  and  after  the  appointment 
of  the  plaintiffs  as  such  architects  as  aforesaid,  the  defendant,  in  a 
letter  addressed  to  Mr.  Barnes,  the  incumbent  of  Skirlaugh  Church, 
falsely  and  maliciously  wrote  and  published  of  the  plaintiffs,  in 
relation  to  their  profession  and  business  of  architects,  and  the  carry- 
ing on  and  conducting  thereof  by  them,  the  words  following,  that  is 
to  say  : — 

"  '  I  am  annoyed  to  see  that  you  and  your  committee  have 
engaged  Messrs.  B.  as  architects  for  .the  restoration  of  your  church. 
Are  you  aware  that  they  are  Wesleyans,  and  cannot  have  any 
religious  acquaintance  with  such  work  ?  ' 

"  Meaning  thereby  that  the  plaintiffs  were  incompetent  to  under- 
take and  superintend  the  restoration  of  the  said  church,  and  were 
unable  to  carry  it  out  with  adequate  spirit  and  feeling. 

"  5.  By  reason  of  the  premises  and  the  publication  of  the  said 
libels  the  plaintiffs  have  been  and  are  injured  in  their  said  profession 
and  business  and  have  suffered  in  their  credit  and  reputation  as 
architects. 

"  The  plaintiffs  claim,  &c." 


No.  9. 
Words  imputing  a  Crime. 


The  plaintiff  has  suffered  damage  by  the  defendant  falsely  and 
maliciously  speaking  and  publishing  of  the  plaintiff  on  May  8th  1886 
the  words  following,  that  is  to  say  : — "  He  is  a  regular  smasher  ; " 
meaning  thereby  that  the  plaintiff  had  uttered,  and  was  in  the  habit 
of  uttering,  counterfeit  coin,  with  the  knowledge  that  such  coin  was 
counterfeit,  and  had  been  guilty  of  an  indictable  offence. 

And  the  plaintiff  claims  £ 

[N.B.     This  veiy  compendious  form  can  only  be  used  in  the  simplest  cases.] 


[*625]  No.   10. 

IVords  imputing  a   Contagious   Disorder. — Special  Damage. 

"1.  At  the  time  of  the  speaking  and  publishing  by  the  defendant 
of  the  words  hereinafter  set  out  the  plaintiff  was  a  tailor  carrying  on 
business  at ,  and  was  a  married  man. 

"  2.  The  defendant  falsely  and  maliciously  spoke  and  published 
of  the  plaintiff  the  words  following  (that  is  to  say)  :  "I  "  (meaning 
the  defendant)  "  hear  L."  (meaning  the  plaintiff)  "has,  &c,"  thereby 
meaning  that  the  plaintiff  was  suffering  from  a  loathsome  contagious 
disorder,  and  had  communicated  the  same  to  his  wife,  and  was  unfit 
by  reason  of  such  disorder  to  be  admitted  into  society. 

"  3.  By  reason   of  the  premises  the  plaintiff  was  injured  in  his 

(558^) 


STATEMENTS    OF    CLAIM.  48*7 

credit  and  reputation,*  and  brought  into  disgrace  among  his  neigh- 
bours and  friends,  and  has  been  deprived  of,  and  ceased  to  receive 
their  hospitality. 

"  4.  The  defendant  falsely  and  maliciously  spoke  and  published 
of  the  plaintiff,  in  relation  to  his  said  business,  the  words  following 
(that  is  to  say):  "I"  (meaning  the  defendant),  "&c,"  thereby 
meaning  that  the  plaintiff  was  in  embarrassed  pecuniary  circum- 
stances, and  unable  to  meet  his  liabilities. 

"5.  By  reason  of  the  matters  in  the  preceding  paragraph  men- 
tioned the  plaintiff  was  injured  in  his  credit  and  reputation  as  a 
tailor,  and  in  his  business,*  and  many  persons,  who  had  theretofore 
dealt  tcith  the  plaintiff  in  his  said  business,  ceased  to  deal  with  him. 

"  The  plaintiff  claims  £ damages." 

[*The  plaintiff  was  ordered  to  give  particulars  of  the  names  of  the  "  neigh- 
bours and  friends"  and  of  the  "many  persons"  referred  to  in  paragraphs  3 
and  5  ;  but  was  unable  to  do  so  :  thereupon  the  words  in  italics  were  struck  out 
of  his  Statement  of  Claim.] 


No.  11. 
Slander  of  a   Clergyman. 


"  1.  The  plaintiff  is  and  at  all  times  hereinafter  mentioned  was  a 
clergyman  of  the  Church  of  England,  a  doctor  of  divinity  and  vicar 
of  the  parish  of . 

"  2.  It  is,  and  was,  the  custom  and  the  dut}^  of  the  plaintiff  as  such 
vicar  as  aforesaid  to  constantly  visit  the  parochial  school  in  his  said 
f*626]  parish  and  to  superintend  the  management  thereof.  Miss  E. 
B.  was  and  is  the  mistress  of  the  said  school. 

"  3.  Thereupon  the  defendant  on  the  25th  day  of  April  1880  well 
knowing  the  premises  and  intending  to  injure  the  plaintiff  in  his 
good  name  and  credit  as  a  clergyman  of  the  Church  of  England  and 
to  cause  it  to  be  believed  that  the  plaintiff  had  misconducted  him- 
self as  such  vicar  as  aforesaid  falsely  and  maliciously  spoke  and 
published  of  the  plaintiff  in  relation  to  his  profession  as  a  clergyman 
of  the  Church  of  England,  and  to  his  office  as  such  vicar  as  afore- 
said and  to  the  plaintiff's  conduct  therein,  the  words  following,  that 
is  to  say  : — "  Miss  E.  B.  (meaning  thereby  the  said  schoolmistress), 

&c "     Meaning  thereby  that  the  plaintiff  had  been  guilty  of 

undue  familiarity  with  the  said  Miss  E.  B.,  and  had  habitually  been 
guilty  of  conduct  unbecoming  a  clergyman  of  the  Church  of  Eng- 
land, and  had  misconducted  himself  in  his  office  as  such  vicar  as 
aforesaid,  and  was  unfit  to  continue  in  the  same,  or  to  hold  any 
other  preferment. 

"  4.  The  plaintiff  has  thereby  been  greatly  injured  in  his  credit 
and  reputation,  and  in  his  said  profession  as  a  clergyman  of  the 
Church  of  England  and  in  his  office  as  such  vicar  as  aforesaid,  and 
brought  into  public  scandal,  ridicule  and  contempt. 

"  And  the  plaintiff  claims  £ damages." 

(559) 


488  PRECEDENTS    OF    PLEADINGS,    ETC. 

No.    12. 
Slander  of  a  Medical  Man. 

1.  The  plaintiff  is  a  M.  R.  C.  S.  of  London  and  Edinburgh,  and 
carries  on  the  profession  and  business  of  a  surgeon  and  general 
medical  practitioner  in  the  city  of and  its  neighbourhood. 

2.  On  the  9th  day  of  January  1880  the  plaintiff  was  called  in  by 
the  defendant  to  attend  to  his  infant  daughter,  who  was  then  lying 
dangerously  ill.  On  the  14th  day  of  January  the  said  daughter 
died,  through  no  negligence  or  default  of  the  plaintiff. 

3.  Thereupon  the  defendant  falsely  and  maliciously  spoke  and 
published  of  the  plaintiff  in  relation  to  his  said  profession  and  busi- 
ness and  his  conduct  therein,  the  words  following,  that  is  to  say  : — 
"Mr.  E.  (meaning  the  plaintiff)  killed  my  child." 

4.  The  defendant  meant  thereby  that  the  plaintiff  had  been  guilty 
of  feloniously  killing  his  said  daughter  by  treating  her  improperly 
[*627]  and  with  gross  ignorance  and  with  gross  and  culpable  want 
of  caution  and  skill,  and  thus  causing  or  accelerating  her  death. 

5.  In  the  alternative,  the  plaintiff  says  that  the  defendant  meant 
thereby  that  the  plaintiff  had  been  guilty  of  misconduct  and  negli- 
gence in  his  said  profession  and  business,  and  had  acted  in  his 
said  profession  and  business  negligently,  injudiciously,  indiscreetly 
and  improperly,  and  had  not  done  his  duty  by  his  patient,  and  was 
unfit  to  be  employed  as  a  medical  man. 

6.  In  consequence  of  the  defendant's  words  the  plaintiff  has  been 
and  is  greatly  prejudiced  and  injured  in  his  credit  and  reputation, 
and  in  his  said  profession  and  business  of  surgeon  and  general 
medical  practitioner. 

The  plaintiff  claims,  &c. 

(See  Edsall  v.  Russell,  4  M.  &  Gr.  1090  ;  12  L.  J.  C.  P.  4.) 


No.  13. 
Slander  of  a  Solicitor — Injunction. 

1.  The  plaintiff  is  a  solicitor  carrying  on  business  at .    He 

had  before  the  utterance  of  the  slander  hereinafter  mentioned  been 
retained  and  employed  by  the  defendant  to  act  for  him  as  his  solici- 
tor in  an  action  which  the  defendant  lost. 

2.  On  the  1st  day  of  April  1884  the  defendant  falsely  and  mali- 
ciously spoke  and  published  of  and  concerning  the  plaintiff  in  rela- 
tion to  his  profession  as  a  solicitor  the  words  following  : —  .... 
meaning  thereby  that  the  plaintiff  had  been  guilty  of  dishonourable 
and  unprofessional  conduct  in  his  practice  as  a  solicitor,  and  that 
the  said  action  had  been  lost  through  the  culpable  negligence  or 
fraudulent  malpractice  of  the  plaintiff,  and  that  the  plaintiff  had 
cheated  and  defrauded  his  client,  the  defendant,  and  would  similarly 
cheat  and  defraud  other  clients. 

(560) 


STATEMENTS    OF    CLAIM.  489 

■     3.  Whereby  the  plaintiff  lias  been  greatly  injured  in   his  credit 
and  reputation,  and  in  his  profession  as  a  solicitor. 
And  the  plaintiff  claims  : — 

( 1)  £500  damages. 

(2)  An  injunction  to  restrain  the  defendant  from  repeating 
the  said  slander,  or  any  other  slanders  injuriously  affecting 
the  plaintiff  in  his  profession  as  a  solicitor  or  otherwise. 


[*628]  No.  14. 

Slander  of  a  Trader  in  the  way  of  his  Trade — Special  Damage. 

1.  The  plaintiff"  is  and  at  the  times  hereinafter  mentioned  was  a 
baker,  carrying  on  business  at in  the  county  of . 

2.  On  and  about  the day  of 1886  the  defendant 

falsely  and  maliciously  spoke  and  published  of  the  plaintiff  in  the 
way  of  his  trade  and  in  relation  to  his  conduct  therein,  the  words 
following,  that  is  to  say: — \here  set  out  the  slander  verbatim]; 
meaning  thereby  that  the  plaintiff  cheated  or  was  guilty  of  fraudu- 
lent, corrupt  and  dishonest  practices  in  his  said  business. 

3.  In  consequence  of  the  said  words  the  plaintiff  was  injured  in 
his  credit  and  reputation  as  a  baker  and  in  his  said  business  and 
trade,  and  X.,  Y.  and  Z.,  who  had  heretofore  dealt  with  the  plain- 
tiff in  his  said  trade,  ceased  to  deal  with  him. 

The  plaintiff  claims  £ ■ — . 


No.  15. 
Another  Form. 


1.  The  plaintiff  is  a  grocer  carrying  on  business  at  Coventry,  and 
has  suffered  damage  by  the  defendant  falsely  and  maliciously 
speaking  and  publishing  of  him  in  relation  to  his  said  business  the 
following  words,  that  is  to  say: — 

(«)  "  The  big  grocer  has  failed."  These  words  were  spoken  by 
the  defendant  to  Mrs.  E.  B.  of  C. Street,  Leaming- 
ton, on  or  about  the  30th  of  May  1883.  Mrs.  B.  asked 
"  Whom  do  you  mean  by  '  the  big  grocer  ?  ' "  The  de- 
fendant replied  "  I  mean  Mr.  L.  of  Coventry  (the  plaintiff': 
a  commercial  traveller  told  me  in  my  office  that  he  had 
failed." 

(b)  "  Mr.  L.  is  in  Queer  Street,  and  everybody  knows  it."  These 
words  were  spoken  by  the  defendant  to  Mr.  C.  B.  of  Co- 
ventry, accountant,  on  June  7th  1883  ;  and  to  several  com- 
mercial travellers,  and  especially  to  Mr.  John  Brown  wdio 
travels  for  the  wholesale  house  of  Candy  &  Co. 

2.  The  defendant  thereby  meant  and  was  understood  to  mean 
that  the  plaintiff  Avas  insolvent,  and  was  unable  to  meet  his  liabili- 

(561) 


*yO  PRECEDENTS    OF    PLEADINGS,    ETC. 

ties,  and  had  filed  a  petition  in  the  Bankruptcy  Court  for  liquida- 
tion of  his  affairs  by  arrangement  or  composition  with  his  creditors. 

[*629]  Particulars  of  Special  Damages. 

(a)  In  consequence  of  the  defendant's  above-mentioned  statement 
to  Mr.  John  Brown,  Messrs.  Candy  &  Co.  who  had  previously  sup- 
plied the  plaintiff  with  goods  on  credit,  refused  to  sell  any  more 
goods  to  the  plaintiff  on  credit,  as  they  otherwise  would  have  done. 

(b)  Since  the  said  slanders  were  uttered,  and  in  consequence 
thereof,  there  has  been  a  general  decline  in  the  plaintiff's  business 
and  a  considerable  loss  of  profit  to  him. 

The  plaintiff  claims  £ damages. 


No.   16. 
Words  imputing  Insolvency. — Special  Damage. 

"  1.  The  plaintiff  is  a  private  gentleman  owning  lands  in  Shrop- 
shire. The  defendant  is  a  solicitor  carrying  on  business  at  Shrews- 
bury. 

"  2.  Between  the  13th  of  November  1886  and  the  31st  of  January 
1887  the  defendant  has  repeatedly  spoken  and  published  of  the 
plaintiff  falsely  and  maliciously,  and  with  the  deliberate  intention 
of  injuring  and  annoying  the  plaintiff,  and  causing  his  creditors  to 
press  for  immediate  payment  of  their  debts,  the  words  following  : 
'  Mr.  X.  (meaning  the  plaintiff)  is  insolvent.  He  owes  money  right 
and  left.  He  cannot  face  his  creditors.  He  is  leaving  the  county 
deeply  in  debt.  Does  he  owe  you  any  money  ?  You  must  look 
sharp  after  it.  He  cannot  pay.  "  You  had  better  let  me  issue  a  writ 
against  him  for  the  amount.' 

"  3.  The  plaintiff  has  thereby  been  greatly  injured  in  his  credit 
and  reputation,  and  has  also  suffered  special  damage,  whereof  the 
following  are  the  particulars  : — 

"(«.)  In  consequence  of  what  the  defendant  said  to  him,  one 
George  Morris  pressed  the  plaintiff  for  payment  of  the  sum  of  £40 
before  the  agreed  period  of  credit  had  expired,  and  has  issued  a  writ 
against  the  plaintiff  for  that  amount,  which  he  would  not  otherwise 
have  done. 

"  (b.)  In  consequence  of  what  the  defendant  said  to  them,  the 
directors  of  the  Shropshire  Banking  Company  applied  to  the  plain- 
tiff for  the  sum  of  £250  for  which  he  was  a  surety  to  them  for  one 
A.  B.,  and  required  the  immediate  payment  thereof,  which  they 
would  not  otherwise  have  done. 

[*630]  "  (c.)  Mrs.  Ann  Graham  was  induced  by  what  the  defend- 
ant said  to  call  in  the  sum  of  £350  secured  te  her  by  an  indenture 
of  mortgage  dated  the  18th  day  of  July  1884,  and  made  between 
her  and  the  plaintiff,  and  to  threaten  in  default  of  payment  to  exer- 

(563) 


STATEMENTS    OF    CLAIM.  491 

cise  the  power  of  sale  contained  in  the  said  indenture,  which  she 
otherwise  would  not  have  done. 

il  And  the  plaintiff  claims  £500  damages." 


No.  17. 

Words  not  actionable  without  proof  of  Special  Damage. 

Chamberlain  v.  Boyd. 

"  1.  In  the  month  of  May  last  the  plaintiff  and  his  brother,  Mr. 
W.  C,  were  candidates  for  membership  of  the  Reform  Club.  The 
defendant  was  a  member  of  the  said  club. 

"  2.  Upon  a  ballot  of  the  members  of  the  said  club  the  plaintiff 
and  his  brother  were  not  elected  to  membership. 

"  3.  Subsequently  to  the  said  ballot  a  meeting  of  the  members  of 
the  said  club  was  called  to  consider  a  proposed  alteration  of  the 
rules  regulating  the  election  of  members,  and  the  defendant  took 
an  active  and  personal  interest  in  the  matter. 

"  4.  With  a  view  to  retain  the  regulations  as  they  then  existed, 
and  to  secure  the  exclusion  of  the  plaintiff  from  membership  of  the 
said  club,  the  defendant  falsely  and  maliciously  spoke  and  published 
of  the  plaintiff,  together  with  his  said  brother,  the  words  following, 
that  is  to  say  : — [words  not  actionable  per  se]  meaning  thereby  that 
the  plaintiff  had  been  guilty  of  conduct  which  unfitted  him  for 
membership  of  the  Reform  or  any  similar  club. 

"  5.  By  reason  of  the  said  defamatory  publications  the  defendant 
induced,  or  contributed  to  inducing,  a  majority  of  the  members  of 
the  said  club  to  retain  the  regulations  under  which  the  plaintiff  had 
been  rejected,  and  thereby  prevented  the  plaintiff  from  again  seek- 
ing to  be  elected  to  the  said  club.  The  plaintiff  thus  lost  the 
advantage  which  he  would  have  derived  from  again  becoming  a 
candidate  with  the  chance  of  being  elected,  and  the  plaintiff  suf- 
fered in  his  reputation  and  credit.* 

"  The  plaintiff  claims  £5,000  damages." 


[*631]  No.  18. 

Action  by  Husband  and   Wife  for  slander  of  the  Wife. 

"  1.  The  plaintiff  George  is  a  licensed  victualler,  and  keeps  the 

"  White  Horse  Inn  "  at ;  the  plaintiff  Elizabeth   is  his  wife, 

and  assists  him  in  the  business  of  the  said  inn. 

"  2.  On  the  15th  day  of  January  last  the  plaintiff  Elizabeth  was, 
in  the  absence  of  her  husband,  managing  and  superintending  the 
said  business  at  the  said  inn,  when  the  defendant  came  into  the  said 

*  The  special  damage  here  alleged  was  held  too  remote  in  the  Court  of  Ap- 
peal, 11  Q  B.  D.  407 1  52  L.  J.  Q.  B.  277  ;  31  W.  R.  572  ;  48  L.  T.  328  ;  47 
J.  P.  372. 

*    (563) 


492  PRECEDENTS    OF    PLEADINGS,    ETC. 

inn  and  asked  her  to  serve  him  with  drink,  which  she  refused  to  do 
on  the  ground  that  he  had  already  had  enough. 

"  3.  Thereupon  the  defendant  falsely  and  maliciously  spoke  and 
published  of  the  plaintiff  Elizabeth,  and  in  relation  to  her  as  manag- 
ing and  superintending  the  said  business  as  aforesaid,  and  in  the 
hearing  of  several  customers  of  the  said  inn,  the  words  following, 

that  is  to  say  : — 

******* 

Meaning  thereby  that  the  plaintiff  Elizabeth  was  an  immoral  char- 
acter, and  was  living  in  adultery,  and  was  unfit  to  have  the  man- 
agement and  superintendence  of  the  said  business. 

"  4.  By  reason  of  the  premises  the  plaintiff  George  was  injured  in 
his  said  business,  and  the  plaintiff  Elizabeth  was  injured  in  her 
character  and  reputation. 

Particulars  of  special  damage  suffered  by  the  plaintiff  George. 

"Each  of  the  plaintiff's  claims  £50  damages." 


No.  19. 

Notice  of  Action. 

[7b  be  served  a  clear  calendar  month  before  action.] 

To  A.  B.  Esq.,  Chief  Constable  of  the  Borough  of 


I,  C.  D.  of ,  in  the  said  borough  of ,  in  the  county 

of ,  according  to  the  statute  in  that  behalf,  give  you  notice 

that  I,  the  said  C.  D.,  will  at  or  soon  after  the  expiration  of  one 
calendar  month  from  the  time  of  your  being  served  with  this  notice, 
cause  a  writ  of  summons  to  be   sued   out  of  the  Queen's  Bench 

Division  of  the   High  Court  of  Justice,   by  E.   F.  of  ,  as 

[*G32]  solicitor  for  me  and  on  my  behalf,  against  you  at  the  suit  of 
me,  the  said  C.  D.,  and  proceed  thereupon  according  to  law  :  For 

that  you,  the  said  A.  B.,  on  the day  of 18S6  at  the 

Town  Hall  and  at  the  police  station  of  the  said  borough  of 

falsely  and  maliciously  wrote  and  published  of  and  concerning  me 
certain  libels  contained  in  a  report  presented  by  you  to  the  watch- 
committee  of  the  said  borough,  and  in  general  order  (358)  issued  by 

you  to  the  police  force,  and  also  on  the  said day  of 

1886,  or  shortly  afterwards,  at  the  police  station  aforesaid,  falsely 
and  maliciously  slandered  me  by  reading,  or  causing  to  be  read,  the 
said  general  order  to  the  said  police  force,  to  my  great  loss  and 

injury,  for  which  I  claim  £ damages. 

Dated  this day  of 1886. 

Yours,  &c, 
C.  D., 

of ,  in  the  said  borough  of , 

in  the  said  county  of . 

(564)   ' 


STATEMENTS    O?    CLAIM.  493 

No.   20. 
Summons  for  Particulars. 

Let  all  parties  concerned  attend  the  Master  in  Chambers,  Central 
Office,  Royal  Courts  of  Justice,  Strand,  London,  on  Monday  the  21st 
day  of  March  1887,  at  1  o'clock  in  the  afternoon,  on  the  hearing  of 
an  application  on  the  part  of  the  defendant,  for  an  order  that  the 
plaintiff  do  deliver  to  the  defendant,  within  four  days,  an  account  in 
writing  of  the  particulars,  showing  when,  where  and  to  whom  the 
alleged  libel  and  slanders  were  written,  spoken  and  published,  and 
also  particulars  of  the  special  damage  alleged  in  paragraph  5  of  the 
statement  of  claim,  and  that  in  default  of  the  delivery  of  such  par- 
tieulars  the  plaintiff  be  precluded  from  giving  any  evidence  in  sup- 
port thereof  on  the  trial  of  this  action  ;  and  that  the  defendant  have 
seven  days  time  to  deliver  his  defence  after  the  delivery  of  the  said 
particulars. 

Dated  the day  of ,  18 — . 

This   summons  was  taken  out  by  Messrs.    S.  &   P.,  of  , 

solicitors  for  the  defendant. 

To  the  plaintiff,  or  Messrs.  R.  &  F.,  his  solicitors. 


[*633]  No.   21. 

Particulars. 

Delivered  pursuant  to  the  order  of  Master  Walton,  made  herein 
and  dated  the  21st  day  of  March,  1887. 

The  following  are  the  best  particulars  the  plaintiff  can  give  of 
the  times,  places  and  persons,  when,  where  and  to  whom  the  alleged 
libels  and  slanders  were  published,  and  of  the  damages  sustained 
by  him  : 

1.  The  said  libel  was  written  by  the  defendant,  and  published  by 

him  to  A.  B.  of ,  at ,  on  or  about  December  29th,  1886, 

and  to  C.  D.  of  ,  at ,  on  or  about   January    2nd,  1887. 

The  plaintiff  is  unable  at  present  to  name  anyone  else  to  whom 
the  said  libel  was  published,  but  believes  that  the  defendant  kept  a 
copy  of  the  said  libel  and  showed  it  to  several  other  persons,  and 
will  deliver  further  particulars  of  their  names  as  soon  as  they  are 
ascertained. 

2.  The  said  slanders  were  uttered  in  the  month  of  December, 
1886,  in  the  presence  of  G.  R.,  of  20  High  Street,  in  the  said  city, 
and  his  manager,  "YV.  K.,  at  20  High  Street,  aforesaid. 

3.  The  following  persons  who  used  formerly  to  deal  with  the 
plaintiff  ceased  to  do  so  in  consequence  of  the  defendant's  conduct : 

M.  M.  of , 

O.  P.  of ,  &c. 

The  profits  of  the  plaintiff's  business  must  have  fallen  from  £730 
to  £420  per  annum. 

Dated  this  29th  day  of  March,  1887. 

P.  cb  P.,  Solicitors  for  the  plaintiff. 
To  the  defendant,  or  Messrs.  S.  &  P.,  his  solicitors. 

(.565; 


494  precedents  of  pleadings,  etc. 

Defences. 

No.   22. 
Traverses. 

1.  The  defendant  never  spoke  or  published  the  words  set  out  in 
paragraph  2  of  the  statement  of  claim  or  any  of  them.* 

[*634]  2.  The  defendant  never  spoke  or  published  the  words  set 
out  in  paragraph  2  of  the  statement  of  claim  with  the  meaning 
therein  alleged. 

3.  The  defendant  denies  that  his  words  in  any  way  referred  to 
the  plaintiff.  They  were  not  so  understood  by  those  who  heard 
them  uttered. 

4.  The  plaintiff  did  not  on  the day  of 1887    (date 

of  the  publication)  carry  on  the  business  of  a as  alleged  in 

paragraph  1  of  the  statement  of  claim. 

5.  The  defendant  denies  that  he  spoke  or  published  the  said  words 
of  the  plaintiff  in  the  way  of  his  said  business. 

*The  words  "  falsely  and  maliciously"  must  not  be  traversed,  unless  pleas 
of  justification  and  privilege  follow  ;  and  even  then  such  a  traverse  is  super- 
fluous.    (Belt  v.  Lawes,  51  L.  J.  Q.  B.  359.) 


No.    23. 
Another  Form. 


1.  In  answer  to  paragraphs  3,  4  and  5  of  the  statement  of  claim, 
the  defendants  deny  that  they  printed  or  published*  the  words 
therein  set  forth  of  or  concerning  plaintiffs  or  any  of  them,  as  is 
alleged. 

2.  In  further  answer  to  the  said  paragraphs  the  defendants  deny 
that  the  words  therein  set  forth  bear  the  sense  therein  given  to  them. 

*The  words  "  falsely  and  maliciously  "  must  not  be  traversed,  unless  pleas 
of  justification  and  privilege  follow  ;  and  even  then  such  a  tranverse  is  super- 
fluous.    (Belt  v.  Laices,  51  L.  J.  Q.  B.  359.) 


No.   24. 
Objection  in  Point  of  Law. 


(Rules  of  the  Supreme   Court,  1883,  Appendix  E.,  Section  III. 
No.  2.) 

"  The  defendant  says  that  : — 

"  1.  The  defendant  did  not  speak  or  publish  the  words. 
"  2.  The  words  did  not  refer  to  the  plaintiff. 
(566) 


DEFENCES.  495 

"  3.  The  defendant  will  object  that  the  special  damage  stated 
is  not  sufficient  in  point  of  law  to  sustain  action." 
See  ante,  p.  536,  and  Precedents,  Nos.  29,  32,  51,  post. 


[*635]  No  Libel. 

No.  25. 

Bond  fide  Comment  on  Matters  of  Public  Interest. 

"  The  defendant's  words  did  not  bear  or  convey  the  meaning 
alleged  in  paragraph  2  of  the  statement  of  claim,  or  any  defamatory 
meaning  ;  they  were  fair  comment  on  two  matters  then  of  great 
public  interest  in  the  said  boroughs,  viz  : — the  result  of  the  recent 
General  Election  of  1885,  and  the  strong  probability  of  another 
General  Election  at  a  very  early  date." 


No.  26. 

Action  against  a  Newspaper  Proprietor. 

Bona  fide  Comment  on  a  Matter  of  Public  Interest. 

1 .  The  defendant  is,  and  at  the  time  of  the  alleged  grievances 
was,  the  proprietor  of  the  Times  newspaper. 

2.  On  the  evening  of  the  12th  of  Febuary  1867,  the  plaintiff  had 
presented  to  the  House  of  Lords  a  petition,  making  a  serious  charge 
against  one  of  Her  Majesty's  judges  ;  a  debate  ensued  on  the  presen- 
tation of  the  said  petition,  and  the  said  charge  was  utterly  refuted. 

3.  The  words  set  out  in  paragraph  3  of  the  statement  of  claim  are 
a  portion  of  the  Parliamentary  Report,  published  in  the  Times  for 
the  13th  of  Febuary  1867.  They  are  a  fair  and  accurate  report  of 
the  proceedings  of  the  House  of  Lords  on  the  preceding  evening, 
and  were  published  by  the  defendant  bond  fide,  and  without  any 
malice  towards  the  plaintiff. 

4.  The  said  petition,  the  charge  it  contained,  and  the  said  debate 
were,  and  are,  all  matters  of  general  public  interest  and  concern. 

5.  The  words  set  out  in  paragraph  5  of  the  statement  of  claim  are 
a  portion  of  a  leading  article  which  appear  in  the  Times  for  the 
13  of  Febuary  1867.  The  said  article  was  a  fair  and  impartial 
comment  on  the  matters  above  referred  to,  and  was  published  by 
the  defendant  bona  fide  for  the  benefit  of  the  public  and  without 
any  malice  towards  the  plaintiff. 

See  Wason  v.  Walter,  L.  R.  4  Q.  B.  73  ;  8  B.  &  S.  671  ;  38  L.  J. 
Q.  B.  34  ;  W.  R.  169  ;  L.  T.  409. 

(567) 


496  PRECEDENTS    OE    PLEADINGS,    ETC. 

[*  636]  No.  27. 

Matter  of  Public  Interest. 

Before  the  publication  of  the  said  alleged  libel  the  plaintiff  was 
the  general  commanding  the  cavalry  division  of  our  army  in  the 
Crimea,  and  the  Earl  of  Cardigan  was  the  general  commanding  the 
light  cavalry  brigade,  part  of  such  division  ;  and  during  the  war 
disputes  arose  and  complaints  were  made  by  each  of  them  of  the 
conduct  of  the  other,  in  their  respective  commands,  in  consequence 
of  which  disputes  great  disasters  happened,  and  great  losses  of  men 
and  horses  were  sustained.  These  disputes  between  the  plaintiff 
and  the  Earl  of  Cardigan  were  injurious  to  the  service,  and  were 
matter  of  public  notoriety  and  of  discussion  and  complaint  amongst 
her  Majesty's  subjects  ;  the  plaintiff  was  consequently  recalled  to 
E no-land,  and  her  Majesty  issued  a  commission  to  Sir  J.  MacNeil 
and  Colonel  Tulloch  to  inquire  into  the  causes  of  such  disasters. 
The  said  commissioners  made  a  report,  animadverting  upon  the  con- 
duct of  the  plaintiff.  A  second  commission  afterwards  issued  to 
the  Board  of  General  Officers,  at  Chelsea,  who  also  made  a  report 
with  reference  to  the  matters  above  mentioned.  And  the  defendant 
says  that, the  said  reports  and  all  the  said  matters  became  and  were 
matters  of  public  notoriety,  discussion  and  interest,  and  the  words 
complained  of  are  part  of  an  article  printed  and  published  in  the  said 
newspaper,  which  was  a  fair  and  bond  fide  comment  upon  the  several 
matters  aforesaid  and  in  reference  thereto,  and  were  printed  and 
published  by  the  defendant  as  and  for  such  comment  and  without 
any  malicious  interest  or  motive  whatever. 

See  Earl  of  Lucan  v.  Smith,  1  H.  &  N.  at  pp.  482,  483  ;  26  L.  J. 
Ex.  96,  n  ;  Clinton  v.  Henderson,  13  Ir.  C.  L.  R.  App.  43  ;  Hort  v. 
lieade,  Ir.  R.  7  C.  L.551. 


No.  28. 

The  same. 

Defence. 

"  1.  The  defendant  admits  that  he  printed  and  published  the  words 
set  out  in  the  statement  of  claim  ;  but  denies  that  he  did  so  mali- 
ciously or  with  the  meaning  therein  alleged  or  with  any  other 
[*637|  defamatory  meaning.  The  said  words  without  the  alleged 
meaning  are  not  libellous, but  are  a  bond  fide  comment  on  matter 
of  public  interest,  namely,  the  conduct  of  certain  persons  at  a  pub- 
lic meeting  called  to  oppose  the  London  Municipal  Reform  Bill, 
at  which  meeting  the  plaintiff  was  a  prominent  speaker. 

"2.  As  to  the^ words  'the  great  Mr. presiding  with  much 

(568) 


DEFENCES.  497 

dignity  over  the  Comua  rout,'  the  defendant  in  the  next  issue  of  his 
paper  published  the  following  correction  : — 

\JIere  set  out  the  correction.  | 
"3.  The  rest  of  the  alleged  libel  in  no  way  refers  tothe  plaintiff. 
The  'fugleman  '  therein  mentioned  was  not  the  plaintiff,  but  another 
gentleman." 

No.   20. 
Reply  to  No.  28. 

"  1.  The  plaintiff  joins  issue  with  the  defendant  upon  the  defence 
herein. 

"2.  The  plaintiff  will  object  at  the  trial  that  paragraph  2  of  the 
defence  affords  no  answer  in  point  of  law  to  the   plaintiff's  claim." 


No  SUFFICIENT  PUBLICATION. 

No.  30. 

JSfo  Publication. — No  Slander. 

Defence  to   Claim  No.  13. 


"  1.  The  defendant  denies  that  the  plaintiff  was  or  had  at  any 
time  been  retained  or  employed  by  him  to  act  as  his  solicitor. 

"  2.  The  defendant  denies  that  he  spoke  or  published  the  words 
alleged  or  any  of  them. 

"3.  The  defendant  denies  that  he  spoke  the  said  words  of  or  con- 
cerning the  plaintiff  in  the  way  of  his  profession,  or  that  the  said 
words  bore  or  were  intended  to  bear  the  meaning  alleged. 

"4.  If  the  defendant  did  speak  the  said  words  (which  he  denies). 
he  says  that  no  person  other  than  the  plaintiff  was  present  or  heard 
the  same. 

"  5.  The  defendant  will  contend  that  the  words  which  he  spoke, 
if  any,  were  only  abuse  and  did  not  amount  to  clef  amatory  matter." 


[*  638]  No.  31. 

No  conscious  Publication. 

Emmens  v.  Pottle  &  Son,  (C.  A.)  16  Q.  B.  D.  354  ;    55  L.  J.  Q. 
B.  51  ;  34  W.  R.  116  ;   53  L.  T.  808  ;  50  J.  P.  22S  ;   1  C.  &  E.   553. 

Defence. 

"1.  The  defendants  deny  that  they  published  the  alleged  libels. 
"  2.  Further  and  alternatively  the' defendants  say  that  they  are 
32  lib.  &  si.an.  (569) 


498  PRECEDENTS    OF    PLEADINGS,    ETC. 

newsvendors  carrying  on  a  large  business  at  14  and  15,  Royal 
Exchange  in  the  city  of  London,  and  as  such  newsvendors  and  not 
otherwise,  sold  copies  of  the  said  periodical  called  "Money  "  in  the 
ordinary  course  of  their  business  and  without  any  knowledge  of  its 
contents  ;  which  are  the  alleged  publications." 


No.   32. 
Reply  to  No.  31. 

"  1.  The  plaintiff  joins  issue  on  the  1st  paragraph  of  the  defence. 

"  2.  As  to  the  2nd  paragraph  of  the  defence  the  plaintiff  says  that 
the  allegations  therein  contained  are  bad  in  substance  and  in  law, 
on  the  ground  that  even  if  the  defendants  sold  copies  of  the  said 
periodical  without  any  knowledge  of  their  contents  and  in  the  ordi- 
nary course  of  their  business  as  alleged  in  their  defence,  still, 
inasmuch  as  the  defendants  sold  the  said  copies  as  newsvendors  for 
reward  in  that  behalf,  the  said  allegations  disclose  no  answer  to  the 
claim  of  the  plaintiff." 


No.  33. 

Innocent  publicatio?i  of  a  Libellous  Novel. 

1.  The  defendants  admit  that  they  printed  and  published  the 
book  or  novel  in  the  statement  of  claim  mentioned,  but  deny  that 
they  did  so  maliciously.  The  defendants  printed  and  published  the 
said  book  or  novel  for  the  writer  thei*eof,  reasonably  and  bona  fide 
believing  the  same  to  be  a  work  of  pui-e  fiction.  The  defendants 
were  not  then  aware  and  do  not  now  admit  that  the  said  book  or 
novel  alluded  to  the  plaintiffs  or  to  any  other  living  person. 

It  may  be  doubted  whether  this  is  a  defence  to  the  action  or  only  a  plea  in 
mitigation  of  damages  ;  see  ante,  pp.  160,  435  ;  R.  v.  Knell,  1  Barnard.  305  ; 
Smith  v.  Ashley,  52  Mass.  (11  Met.)  367. 


[*639]  No.  34. 

No  conscious  Publication.— 3fadness. 

"  1.  The  defendant  does  not  admit  that  he  ever  spoke  or  published 
the  words  complained  of  in  paragraphs  3  and  4  of  the  statement  of 
claim. 

"  2.  Throughout  the  month  of  April  and  the  early  part  of  May 
1879  the  defendant  was  suffering  from  acute  mania,  brought  on  by 
overwork;  he  has  no  recollection  of  having  spoken  any  such  words 
as  alleged  either  then  or  at  any  other  time.  If,  however,  the  defend- 
ant did  in  fact  utter  any  such  words   (which  he   does  not  admit), 

(57  ) 


DEFENCES.  4  00 

they  were  not  spoken  intentionally  or  maliciously,  but  solely  in  con- 
sequence, and  under  the  influence,  of  the  said  mania  ;  as  all  who 
heard  the  said  words  then  well  knew.  There  is  and  was  no  foun- 
dation whatever  for  any  such  charge  ;  and  the  defendant  unreserv- 
edly withdraws  all  imputation  on  the  plaintiff's  character,  and 
exceedingly  regrets  that  he  ever  spoke  the  said  words  (if  in  fad  he 
did  speak  them,  which  he  does  not  admit)." 

It  may  be  doubted  whether  this  is  a  good  defence,  or  only  a  pleading  in 
mitigation  of  damages.  A  somewhal  similar  plea  of  drunkenness  will  be  found 
post,  JNo  67.     See  ante,  p.  406. 


No.  35. 
Words  spoke/ i  in  Jest. 
Defence  to  Claim  JVo.  9. 


1.  The  defendant  admits  that  he  spoke  and  published  the  words 
set  out  in  paragraph  2  of  the  statement  of  claim,  but  denies  that  he 
spoke  them  with  the  meaning  in  that  paragraph  alleged. 

2.  The  defendant  is,  and  at  all  times  hereinafter  mentioned  was, 
clerk  to  Mr.  N,  a  wholesale  baker.  The  plaintiff  is  one  of  Mr.  N.'s 
retail  customers.  It  is  and  was  one  of  the  duties  of  the  defendant 
as  such  clerk  to  call  on  Mr.  N.'s  retail  customers  every  Saturday 
morning  and  receive  the  money  due  for  the  bread  delivered  to  them 
in  the  course  of  the  week. 

3.  On  the  morning  of  Saturday  March  the  27th  1886  the  defend- 
ant called  upon  the  plaintiff  and  took  the  money  for  the  bread 
delivered  to  him  during  the  week.  Amongst  the  change  then  given 
[*640]  by  the  plaintiff  to  the  defendant  was  a  counterfeit  florin. 
Neither  the  plaintiff  nor  the  defendant  knew  or  observed  at  the  time 
that  the  florin  was  counterfeit. 

4.  Later  in  the  day  when  the  defendant  was  paying  the  money 
over  at  the  office,  his  employer,  Mr.  N,  discovered  that  the  said 
florin  was  counterfeit.  The  defendant  thereupon  took  the  said 
florin  back  to  the  plaintiff's  shop,  and  the  plaintiff  gave  him  without 
demur  two  good  shillings  in  exchange  therefor. 

5.  On  the  morning'  of  Saturday  May  the  8th  1886,  when  the 
defendant  called  on  the  plaintiff  as  usual,  the  plaintiff  again  gave 
the  defendant  a  counterfeit  florin  amongst  the  money  for  the  bread. 
And  again  neither  the  plaintiff  nor  the  defendant  knew  or  observed 
at  the  time  that  the  florin  was  counterfeit. 

6.  Again,  wdien  the  defendant  was  paying  the  money  over  to  his 
employer  at  the  office;  Mr.  N.  discovered  that  the  florin  was  counter- 
feit. Thereupon  the  defendant,  recollecting  the  similar  occurrence 
mentioned  in  paragraphs  3  and  4  above,  exclaimed  : — "  Why,  that's 
the  second  bad  florin  Mr.  H.  has  passed  to  me  within  the.  last  six 
weeks.     He's  a  regular  '  smasher'  !" 

7.  The  defendant  spoke  these  words  as  a  joke,  and  never  intended 
seriously  to  impute  to  the  plaintiff  any  criminal  offence. 

(571) 


500  PRECEDENTS    OF    PLEADINGS,    ETC. 

8.  The  only  persons  who  were  present  at  the  time  or  who  heard 
the  said  words  were  the  defendant's  employer,  Mr.  N.,  and  a  fellow- 
clerk  of  his,  one  David  Griggs.  Both  Mr.  N.  and  David  Griggs 
were  aware  of  the  circumstances  detailed  above,  and  knew  to  what 
the  defendant  was  referring,  and  understood  that  he  spoke  in  joke, 
and  did  not  intend  to  make  any  serious  charge  against  the  plaintiff. 

[N.B. — This  is  a  conciliatory  line  of  defence.  The  plaintiff ,  if  well  advised, 
will  at  once  settle  the  matter  amicably.  If  he  does  not,  the  defendant  is  almost 
sure  of  a  verdict.  (See.ante,  pp.  106,  108;  Thompson  v.  Bernard  (lCamp.  48). 
But  sometimes  a  defendant,  if  foolish  and  angry,  insists  on  setting  up  a  more 
vindictive  defence.  He  denies  uttering  the  words,  so  as  to  compel  the  tell-tale 
Griggs  to  come  into  the  box  to  be  cross-examined  ;  and  he  then  proceeds  to 
justify.  These  tactics  will  infallibly  lead  to  a  verdict  for  the  plaintiff  with 
heavy  damages.] 


[*641]  Justification. 

No.  36. 
Another  Defence  to  Claim  No.  9. 

1.  The  defendant  does  not  admit  that  he  spoke  or  published  the 
words  set  out  in  the  statement  of  claim. 

2.  The  said  words  are  true  in  substance  and  in  fact.  On  March 
27th  1880  the  plaintiff  uttered  and  passed  to  the  defendant  a  coun- 
terfeit florin,  well-knowing  the  same  to  be  counterfeit.  On  May 
8th  1880  the  plaintiff  uttered  and  passed  to  the  defendant  another 
counterfeit  florin,  well-knowing  the  same  to  be  counterfeit.  [/State 
any  other  instances  in  which  the  plaintiff 'passed  bad  coin  to  the  de- 
ft ndant  or  others.']  Wherefore  the  defendant  says  that  the  plaintiff 
is  a  regular  "  smasher,"  and  has  uttered,  and  has  been  in  the  habit  of 
uttering,  counterfeit  coin,  well-knowing  the  same  to  be  counterfeit  ; 
and  has  been  guilty  of  divers  misdemeanours. 


No.  37. 

Justification  of  the  Words  without  the  cdleged  meaning. 

"3.  The  defendant  denies  that  he  spoke  or  published  the  words 
set  out  in  paragraph  5  of  the  statement  of  claim  with  the  meaning 
therein  alleged,  or  at  all  with  reference  to  the  plaintiff's  trade  of  a 
builder  or  his  mode  of  conducting  the  same,  or  in  any  defamatory 
sense.  The  said  words,  without  the  said  meaning,  and  according  to 
their  natural  and  ordinary  signification,  are  true  in  substance  and  in 
fact.  Particulars  are  delivered  herewith.  They  exceed  three  folios." 
(See  ante,  p.  177.) 
(572) 


DEFENCE.  501 

No.  38. 
Justification  of  a  portion  of  a  Libel. 

Leyman  v.  Latimek  and  othees,  3  Ex.  I).  15,  352  ;  47  L.  J.  Ex. 
470  ;  25  W.  R.  751  ;   20  W.  R.  305  ;   37  L.  T.  300,  819. 

Defence. 

1.  The  defendants  do  not  admit  that  the  plaintiff  is  the  proprietor 
and  editor  of  the  Dartmouth  Advertiser  newspaper. 

[*642]  2.  As  to  such  portion  of  the  said  words  as  alleges  that  the 
plaintiff  is  a  felon  editor,  the  defendants  say  that  the  same  is  true  in 
substance  and  in  fact.  The  plaintiff  has  been  convicted  of  felony, 
and  was  sentenced  to  twelve  months'  hard  labour  for  stealing 
feathers. 

3.  As  to  the  residue  of  the  said  words  the  defendants  say  that  the 
same  were  parts  of  certain  articles  printed  and  published  in  the 
defendants'  said  newspaper,  each  of  which  was  a  fair  and  bond  fide 
comment  upon  the  conduct  of  the  plaintiff  in  his  public  character  as 
the  nominal  editor  of  the  Dartmouth  Advertiser,  a  public  news- 
paper, and  was  printed  and  published  by  the  defendants  as  and  for 
such  comment,  and  without  any  malicious  motive  or  intent  whatever. 


No.  39. 
Reply  to  above  Defence. 


"  1.  The  plaintiff  joins  issue  upon  the  1st  and  3rd  paragraphs  of 
the  defence. 

"  2.  As  to  the  2nd  paragraph  of  the  defence,  the  plaintiff  (so  that 
such  admission  be  not  in  any  way  extended  or  taken  to  mean  that 
he  ever  was,  in'  fact,  guilty  of  the  offence  referred  to)  admits  the 
allegation  therein  contained.  But  the  plaintiff  further  says  that  he 
has  never  been  convicted  of  felony  save  on  that  one  occasion  men- 
tioned in  the  said  paragraph.  On  that  occasion  he  was  convicted 
of  the  supposed  felony  by  a  Court  duly  having  jurisdiction  in  that 
behalf,  the  Court  of  Quarter  Sessions  for  the  county  of  Cornwall  ; 
and  the  said  Court  in  the  exercise  of  such  jurisdiction,  adjudged 
that,  as  a  punishment  for  the  said  supposed  felony,  the  plaintiff 
should  be  imprisoned  and  kept  to  hard  labour  for  twelve  calendar 
months.  The  said  conviction  took  place  several  years  ago,  and  the 
plaintiff,  as  the  defendants  well  knew,  duly  endured  the  punishment 
to  which  he  was  so  adjudged  as  aforesaid,  for  the  said  supposed  fel- 
ony, and  thereby  became,  and  was,  and  has  ever  since  been,  and  is, 
in  the  same  situation  as  if  a  pardon  under  the  Great  Seal  had  been 
granted  to  him  as  to  the  said  supposed  felony  whereof  he  was  con- 
victed as  aforesaid." 

(573) 


502  PRECEDENTS    OF    PLEADINGS,    ETC. 

[*643]  No.  40. 

Justification  and  Privilege. 
Defence  to  Claim  No.   1. 

1.  The  defendants  admit  that  the  defendant  Alice  wrote  and  pub- 
lished the  words  set  out  in  paragraph  2  of  the  statement  of  claim. 

2.  The  said  words  are  true  in  substance  and  in  fact.  While  the 
plaintiff  was  in  the  service  of  the  defendants,  to  wit,  on  the  18th  day 
of  March  1886  she  stole  two  pair  of  sheets  and  one  counterpane, 
of  goods  and  chattels  of  the  defendant  Henry,  and  pawned  them  at 
the  shop  of  John  Smith,  No  28  High  Street,  Evesham  ;  wherefore 
the  defendants,  as  they  lawfully  might,  discharged  the  plaintiff  from 
their  service. 

3.  Subsequently  the  plaintiff  was  desirous  of  entering   into  the 

service  of  Mrs.  M.,  of ,  in  the  county  of  Warwick  ;  and  Mrs. 

M.  wrote  a  letter  to  the  defendant  Alice  inquiring  as  to  the 
plaintiff's  character,  and  asking  especially  why  she  left  the  defen- 
dants' service. 

4.  Thereupon  it  became  and  was  the  duty  of  the  defendant  Alice 
to  write  to  Mrs.  M.,  telling  what  she  knew  as  to  the  plaintiff's 
character,  and  stating  the  reason  of  her  dismissal.  In  accordance 
with  such- duty  the  defendant  Alice  wrote  to  Mrs.  M.  a  letter  con- 
taining the  words  complained  of.  The  said  words  were  written  in 
answer  to  Mrs.  M.'s  inquiries  under  a  sense  of  duty  and  without 
malice  and  in  the  bond  fide  belief  that  the  charge  therein  made  was 
true  ;  Avherefore  the  defendants  say  that  the  said  letter  is  privileged 
by  reason  of  the  occasion  on  which  it  was  written. 


Privilege. 

No  41. 

Absolute  Privilege. — Litigant  in  Person. 

"  Before  the  alleged  slander  was  spoken  the  plaintiff  had  issued  a 
writ  against  the  defendant  claiming  an  account,  and  had  taken  out 
a  summons  in  the  said  action  for  an  account,  which  on  November 
12th  1 885  came  on  for  hearing  before  Mr.  E.  A.,  the  District  Registrar 

for .     The  defendant,  who  is  a  solicitor,  appeared  in  person 

before  the  said  Registrar  to  oppose  the  said  summons,  and  the  said 
words  were  spoken,  if  at  all,  to  the  said  Registrar  in  the  course  of 
argument  during  the  hearing  of  the  said  summons,  and  are  therefore 
absolutely  privileged." 
[*644]  No.  42. 

Absolute  Privilege. —  Witness. 

The  said  words  were  spoken  by  the  defendant  whilst  in  the  witness- 

(574) 


PLEAS    OF    PRIVILEGE.  503 

box  during  his  examination  on  oath  as  a  witness  in  the  course  of  a 
judicial  proceeding  before  an  alderman  at  GuildhalL 

(See  Seaman  v.  NethercUft,  2  C.  P.  D.  5:5  ;  40  L.  J.  C.  P.    128  ; 
25  W.  R.  159  ;  35  L.  T.   784) 


No.  43. 
Absolute  Privilege. — Military  Duty . 

The  said  words  are  part  of  an  official  report  written  by  the  de- 
fendant in  accordance  with  his  military  duty  for  the  information  of 
his  military  superiors,  and  published  by  him  in  the  discharge  of  his 
said  duty  to  such  military  superiors  and  not  otherwise. 

(Dawkins  v.  Lord  Paulet,  L.  R.  5.  Q.  B.  94  ;  39  L.  J.  Q.  B.  53  ; 
18  W.  R.  330  ;  21  L.  T.  584.) 


Qualified  Privilege. 


For  a  plea  of  privilege  on  the  ground  that  the  alleged  libel  was 
written  as  a  "  character  "  for  a  servant,  see  ante,  Precedent,  No.  40. 

No.  44. 

Answer  to  Confidential  Inquiries. 

Defence  to  Claim  iVb.  5. 

"  1.  The  statements  contained  in  the  said  letter  are  true  in  sub- 
stance and  in  fact,  according  to  the  fair  and  ordinary  meaning  of  the 
words  used  in  the  said  letter. 

"  2.  The  publication  of  the  said  letter  to  H.,  if  made,  was 
privileged,  and  was  made  bond  fide  and  without  malice.  H.  having 
an  interest  in  certain  business  transactions,  in  which  the  plaintiff 
and  the  defendant's  bank  were  concerned,  made  inquiries  of  the 
defendant  as  to  the  plaintiff,  and  it  was  in  answer  to  such  inquiries 
that  the  publication,  if  any,  of  the  said  letter  took  place." 


[*045]  No.  45. 

Master  and  Servant. 

"  The  plaintiffs  at  the  times  mentioned  in  the  4th  paragraph  of 
the  statement  of  claim  were  employed  as  labourers  by  a  certain 
Mr.  M.,  who  made  certain  inquiries  of  the  defendant  as  to  the  con- 
duct of  the  plaintiffs  and  as  to  certain  facts  that  were  within  the 
knowledge  of  the  defendant  and  were  not  within  the  knowledge  of 
the  said  Mr.  M.     And  it  thereupon  became   and  Avas  the  duty  of 

(575) 


504  PRECEDENTS    OF    rLEADINGS,    ETC. 

the  defendant  to  state  the  said  facts  to  the  said  Mr.  M.  Such 
statements  are  the  alleged  slanders  ;  hut  they  were  made  hand  fide 
in  the  discharge  of  the  said  duty  and  in  answer  to  the  said  inqui- 
ries, and  in  the  honest  belief  that  the  facts  so  stated  were  true  and 
without  any  malice  towards  the  plaintiffs  or  either  of  them  ; 
wherefore  the  defendant  says  that  they  were  privileged  hy  reason 
of  the  occasion  on  which  they  were  made." 


No.  46. 
Advice  to  one  about  to  marry. 


Before  and  at  the  time  of  the  alleged  grievances  the  defendant 
was  the  son-in-law  of  the  Mrs.  Hawkins  mentioned  in  paragraph  3 
of  the  statement  of  claim.  She  informed  the  defendant,  as  the 
fact  was,  that  she  was  ahout  to  marry  the  plaintiff.  Thereupon 
the  defendant  spoke  the  said  words  confidentially  to  the  said  Mrs. 
Hawkins,  without  malice,  and  in  the  honest  desire  to  protect  her 
private  interests,  and  his  own.  The  defendant  at  the  time  bond 
fide  believed  in  the  truth  of  what  he  said. 

{Todd  v.  Hawkins,  8  C.  &  P.  88  ;  2  Moo.  &  Rob.  20.) 


No.  47. 
Communication    Volunteered. 


2.  The  defendant  was  employed  by  the  plaintiff  to  work  at  the 
house  of  Mrs.  M.  mentioned  in  the  statement  of  claim,  during  her 
absence  from  home.  Whilst  he  was  so  employed,  it  came  to  his 
knowledge  that  the  plaintiff  had,  in  collusion  with  the  servants  of 
the  said  Mrs.  M.,  removed  certain  goods  of  hers  from  the  premises 
and  sold  them.  It  thereupon  became  the  duty  of  the  defendant  to 
[*646]  communicate  these  facts  to  the  said  Mrs.  M.,  and  he  did  so 
on  her  return,  honestly  believing  that  every  word  he  said  was  true. 
And  the  defendant  says  that  these  communications  are  the  alleged 
slanders,  if  any,  and  that  the  same  were  made  bond  fide  in  the  dis- 
charge of  the  said  duty,  and  not  maliciously,  nor  with  intent  to 
injure  the  plaintiff,  and  were  and  are  therefore  privileged. 


No.  48. 

Offer  of  Reward  for  discovery  of  Offender. 

Defence  to  Claim  No.  3. 

"The  defendant  admits  the  publication  of  the  placard  referred  to 
in  paragraph  2  of  the  statement  of  claim,  but  denies  that  the  same 
was  false  or  malicious  ;  the  defendant  also  denies  the  alleged  mean- 

(576) 


PLEAS    ()K    PRIVILEGE.  505 

ing,  and  mivs  that  the  several  matters  staled  in  the  said  placard 
are  true  in  substance  and  in  fact,  and  were  published  by  the  de- 
fendant for  the  purpose  of  endeavouring  to  discover  the  person 
who  committed  the  assault  referred  to  in  the  said  placard,  and  with 
the  bond  fide  object  and  intention  of  bringing  Mich  person  to  jus- 
tice and  of  prosecuting  him  to  conviction  and  not  otherwise.  ' 


No.  49. 

Complaint  of  Plaintiff  s  Misconduct. 

" The  plaintiff  is  the  nephew  of  one  of  the  defendant's  tenants, 
Mrs.  B.,  and  at  the  date  of  the  alleged  slander  was  lodging  with 
her  in  the  house  she  rented  of  the  defendant.  On  June  3rd  1886 
the  defendant,  from  the  hill  above  his  house,  saw  a  young  man, 
whom  he  then  believed  to  be  the  plaintiff,  jump  out  of  the  kitchen 
window  of  Mrs.  B.'s  house  and  enter  an  orchard  of  the  defendant's, 
and  commence  to  steal  the  defendant's  apples.  As  soon  as  the 
defendant  approached,  the  young  man  ran  away.  Thereupon  the 
defendant,  as  lie  lawfully  might  do,  went  to  Mrs.  B.,  told  her  what 
he  had  seen,  and  complained  to  her  of  the  plaintiff's  conduct. 
This  communication  and  complaint  is  the  alleged  slander  ;  and 
the  defendant  says  that  it  was  privileged  by  reason  of  the  occa- 
sion on  which  it  was  uttered.  The  defendant  bore  the  plaintiff  no 
malice,  and  honestly  believed  at  the  time  that  what  he  said  was  true. 


[*  647]  "No.  50. 

Claim  of  Right. 

"5.  The  defendant's  husband  died  in  November  1883,  having 
appointed  the  plaintiff  executor  and  trustee  of  his  last  will.  And 
the  plaintiff,  as  such  executor  and  trustee,  took  possession  of  and 
was  proceeding  to  sell  by  auction'  not  only  the  furniture,  which  was 
the  property  of  his  testator  at  the  time  of  his  death,  but  also  cer- 
tain other  furniture  which  was  the  separate  property  of  the  defendant. 
Thereupon  the  defendant,  as  she  lawfully  might  do,  attended  the 
said  auction  for  the  purpose  of  asserting  her  claim  to  her  separate 
property,  and  of  disputing  the  plaintiff's  right  to  sell  the  same.  And 
the  defendant  then  spoke  ami  published  the  said  words,  if  at  all, 
bona  fide,  and  in  the  honest  belief  that  they  were  true,  and  without 
any  malice  towards  the  plaintiff  ;  wherefore  the  defendant  says 
that  the  said  words  were  privileged  by  reason  pof  the  occasion  on 
which  they  were  uttered." 

And  see  Precedent,  No.  86,  post,  p.  667. 
(577) 


500  PRECEDENTS    OF    PLEADINGS,    ETC. 

No.   51, 

Reply  to  No.  50. 

"  1.  The  plaintiff  joins  issue  on  the  defence. 

"  2.  The  plaintiff    will    object   that    the   occasion   set  forth  in 
paragraph  5  was  not  and  is  not  shown  to  have  been  privileged." 


No.   52. 

Self-defence. 

"The  plaintiff  in  May  1886  published  and  widely  distributed  a 
pamphlet  entitled  '  The  case  of  Salem  Chapel .'  This  pam- 
phlet contained  serious  charges  against  the  defendant,  both  person- 
ally and  as  secretary  and  one  of  the  deacons  of  the  said  chapel. 
Therefore  the  defendant,  as  he  lawfully  might  do,  published  the 
words  set  out  in  paragraph  5  of  the  statement  of  claim  in  reply  to 
the  said  pamphlet  published  by  the  plaintiff,  and  bona  fide  for  the 
purpose  of  vindicating  his  character  against  the  plaintiff's  attack, 
and  in  order  to  prevent  the  plaintiff's  said  charges  from  operating 
to  his  prejudice,  and  in  reasonable  and  necessary  self-defence,  and 
without  any  malice  towards  the  plaintiff.  The  said  words  are 
therefore  privileged." 


[*  048]  No.   53. 

Common  Interest. —  Church  Members. 

1.  The  words  set  out  in  paragraph  2  of  the  statement  of  claim 
were  part  of  a  requisition  summoning  a  meeting  of  the  members  of 

the  English  Baptist  Church  at ,  which  was  signed  by  122  of 

such  members.  This  requisition  was  addressed  and  sent  solely  to 
members  of  the  said  church,  who  had  a  common  interest  in  the 
matters  therein  referred  to,  and  was  published  bona  fide  and 
without  malice,  and  under  a  sense  of  duty,  and  was  therefore 
privileged. 

2.  The  plaintiff  subsequently,  on  Friday  December  7th  1883, 
wi*ote  and  published  in  the  said  newspaper  a  long  letter  attacking 
the  conduct  of  those  who  had  signed  the  said  requisition,  and  con- 
taining erroneous  statements  as  to  their  object  in  convening  the 
said  meeting  ;  wherefore  the  defendant,  as  he  lawfully  might  do, 
wrote  and  published  the  words  set  out  in  paragraph  3  of  the  state- 
ment of  claim  in  answer  to  the  said  letter  written  by  the  plaintiff, 
and  with  the  bona  fide  intention  of  explaining  the  true  object  of 
the  said  meeting,  and  of  correcting  the  said  erroneous  statements, 
and  not  otherwise.  The  said  words  are  strictly  an  answer  to  the 
charges  made  by  the  plaintiff  against  the  defendant,  and  the  other 
conveners  of  the  said  meeting,  and  were  published  without  malice 

1578) 


PLEAS    OF   PRIVILEGE.  507 

and   in    reasonable  and  necessary  self-defence,  and  wire  and  are 
therefore  privileged. 


No.  54. 

Members  of  the  same  Committee. 

"The  defendant  is  a  Vice-President  of  the  said  Association  and 
the  said  A.  B.  to  whom  alone  the  defendant  published  the  said  letter 
was  at  the  date  of  such  publication  the  Honorary  Secretary  of  the 
said  Association.  The.  defendant  learnt  for  the  first  time  in  the 
month  of  January  1886,  from  the  fly-leaf  of  one  of  the  pamphlets 
published  by  the  said  Association,  that  the  plaint  ill'  had  been  elected 
a  member  of  the  Executive  Committee  of  the  said  Association.  The 
defendant  bona  fide  believed  that  the  plaintiff  was  not  a  fit  person 
to  occupy  that  position.  Both  he  and  the  said  A.  B.  had  a  common 
interest  in  securing  that  no  unfit  person  should  serve  on  the  Execu- 
tive Committee  of  the  said  Association.  The  defendant  also  had  a 
right  to  object  to  his  own  name  and  the  plaintiff's  appearing  together 
on  the  said' fly-leaf  [*  G49]  as  fellow-officers  of  the  same  Association. 
It  thereupon  "became  and  was  his  duty  to  write  the  said  letter  to 
the  said  A.  B.,  and  he  wrote  it  in  the  honest  discharge  of  said  duty 
and  in  the  bond  fide  belief  that  the  statements  therein  contained 
were  true,  and  without  any  malice  towards  the  plaintiff." 


No.  55. 

Competitors  at  a  Poultry  Shoio. 

The  plaintiff  and  defendant  are  both  members  of  the  "  Hemel 
Hempstead  Poultry  Club,"  and  were  competitors  at  the  Annual 
Show  of  the  club  in  1886.  Complaints  were  made  during  the  show 
of  the  plaintiff's  conduct  as  such  competitor,  and  eventually  several 
other  members  lodged  a  written  protest  against  the  plaintiff  being 
allowed  to  compete.  By  the  rules  of  the  club  it  was  the  duty  of 
the  committee  to  investigate  this  dispute.  The  said  committee 
wrote  to  the  defendant,  who  had  not  signed  the  protest,  and  re- 
quested him  to  state  to  them  all  he  knew  or  had  heard  as  to  the 
said  complaints  and  as  to  the  other  matters  referred  to  in  the  said 
protest.  Thereupon  the  defendant  in. compliance  with  such  request 
wrote  the  letter  which  is  the  alleged  libel.  Such  letter  was  written 
by  the  defendant  without  any  malice  towards  the  plaintiff  and 
with  the  sole  object  of  guiding  and  assisting  the  said  committee  in 
their  inquiries,  and  in  the  honest  belief  that  every  statement  therein 
contained  was  true,  and  was  a  communication  math'  bond,  fide  on  a 
matter  in  which  the  defendant  had  an  interest  and  in  reference  to 
which  he  had  a  duty  to  perform,  and  was  published  only  to  the 
said  committee  who  had  a  corresponding  interest  and  duty  in  that 
behalf. 

(579) 


508  PKECEDENTS    OF    PLEADINGS,    ETC. 

No.  56. 

Vendor  and  Purchaser. 

Before  the  publication  of  the  alleged  slander  the  defendant  had 
entered  into  a  written  contract  to  purchase  a  field  from  a  friend  of 
his,  Mr.  K.  Mr.  K.  employed  the  plaintiff  as  his  solicitor  to  act  for 
him  in  the  matter.  The  plaintiff  unnecessarily  delayed  the  com- 
pletion of  the  said  purchase  and  omitted  to  answer  the  defendant's 
requisitions  for  an  unreasonably  long  time,  though  both  Mr.  K.  and 
the  defendant  [*  650]  were  anxious  for  a  speedy  settlement.  In 
consequence  of  the  plaintiff's  delay,  the  date  originally  fixed  for 
completion  passed  ;  and  then  the  plaintiff  persuaded  Mr.  K.  to 
claim  from  the  defendant  interest  on  the  purchase-money,  which 
the  defendant  refused  to  pay  on  the  ground  that  his  money  had  for 
months  been  lying  idle  at  the  bank,  and  that  the  matter  would  have 
been  completed  on  the  day  originally  fixed,  had  the  plaintiff  used 
reasonable  dispatch.  This  dispute  still  further  delayed  the  com- 
pletion of  the  said  purchase,  and  also  greatly  increased  the  amount 
of  the  costs  which  both  Mr.  K.  and  the  defendant  would  have  to 
pay  their  respective  solicitors.  Both  Mr.  K.  and  the  defendant  had 
a  common  interest  in  keeping  down  the  amounts  of  the  said  costs, 
and  in  effecting  a  prompt  and  amicable  settlement  of  the  said  dis- 
pute, and  in  the  speedy  completion  of  the  said  purchase.  There- 
upon Mr.  K.  wrote  a  letter  to  the  defendant  inquiring  as  to  these 
matters,  and  asking  especially  as  to  the  cause  of  the  unusual  delay. 
It  thereupon  became  and  was  the  duty  of  the  defendant  in  answer- 
ing the  said  letter  to  state  confidentially  to  Mr.  K.  his  opinion  as  to 
the  way  in  which  the  plaintiff  was  conducting  this  business  ;  and 
in  discharge  of  such  duty  the  defendant  wrote  and  published  the 
letter  set  out  in  paragraph  2  of  the  statement  of  claim.  This  letter 
was  published  by  the  defendant  to  the  said  Mr.  K.  alone,  and 
related  solely  to  the  said  matters  in  which  the  defendant  and  Mr. 
K.  had  such* common  interest  as  aforesaid,  and  was  written  in  fur- 
therance of  such  common  interest,  and  in  answer  to  the  said  letter 
from  Mr.  K.,  and  under  a  sense  of  duty,  and  without  malice,  and  in 
the  bond  fide  belief  that  every  word  contained  in  the  said  letter  was 
true,  and  not  otherwise,  and  is  therefore  privileged. 


No.  57. 
Report  of  a  Judicial  Proceeding. 

1.  The  defendant  is  the  proprietor  of  the County  Gazette. 

2.  On  the day  of 1886  the  plaintiff  applied  to  the 

bench  of  magistrates   for   the  division   of  the  said 


county,  at  a  special   licensing  sessions,  for  a  spirit   licence.     This 
application  the  magistrates  refused. 

?>.  On  the day  of 1886  the  defendant  published  as 

usual  in  the  said  Gazette  a  report  of  the  proceedings  before  the  said 
magistrates  on  the  preceding  day,  including  an  accurate  and  im- 

^580) 


PLEAS    Or    PEIVILEGE.  509 

partial  [*  651]  account  of  the  plaintiff's  application  and  the  reasons 
stated  by  the  bench  for  their  refusal,  which  is  the  alleged  libel. 

4.  Such  account  w:is  published  by  the  defendanl  bond  fide,  and 
without  malice,  and  for  the  public  benefit,  and  in  the  usual  course 
of  the  defendant's  business  and  duty  as  a  public  journalist,  and  was 
and  is  a  correct,  fair  and  honest  report  of  the  said  proceedings. 


No.  58. 
A  shorter  'Form. 


"The  said  words  formed  part  of  a  fair  and  accurate  report  of  certain 
proceedings  in  the  Westminster  Police  Court  upon  a  charge  of  theft 
brought  against  the  plaintiff,  and  were  published  bond  fide  and  with- 
out malice  in  the  course  of  the  defendant's  business  as  journalist, 
and  are  therefore  privileged." 


No.  59. 

Report  of  a  Judgment  published  as  a  Pamphlet. 

MacDougall  v.  Knight  &  Sox,  17  Q.  B.  D.  636  ;  55  L.  J.  Q.  B.  464  ; 
34  W.  R.  727  ;  55  L.  T.  274. 

"  1.  The  defendants  admit  that  they  published  of  the  plaintiff  a 
pamphlet  which  is  a  verbatim  report  of  the  judgment  of  the  Honour- 
able Mr.  Justice  North,  given  on  the  30th  day  of  June  1884  in  the 
action  of  MacDougall  v.  Knight  and  Son,  and  which  really  gives  all 
the  information  necessary  to  be  known  by  anyone  feeling  an  interest 
in  the  matter.  But  the  defendants  deny  that  they  did  so  falsely,  or' 
maliciously,  or  that  they  distributed  the  said  pamphlet  broadcast  in 
the  city  of  Bath,  or  the  counties  of  Somerset  and  Gloucester,  or 
elsewhere,  or  at  all. 

"  2.  The  said  pamphlet  contained  the  words  set  out  in  paragraph 
2  of  the  statement  of  claim.  The  said  words  were  in  fact  spoken  by 
the  Honourable  Mr.  Justice  North  in  delivering  judgment  in  the 
said  action  ;  but  the  defendants  do  not  admit  that  he  or  they  pub- 
lished the  said  words  with  the  meanings  alleged  in  the  said 
paragraph. 

"3.  The  defendants  are  auctioneers  and  upholsterers  carrying  on 
business  at  Bath,  and  having  a  large  number  of  customers  resident  in 
Bath  and  the  neighbourhood.  The  plaintiff  brought  the  said  action 
[*652]  against  the  defendants  in  the  Chancery  Division  of  the  High 
Court  of  Justice,  charging  the  defendants  with  breach  of  contract, 
misrepresentation  and  breach  of  faith.  The  said  action  was  assigned 
for  trial  to  the  Honourable  Mr.  Justice  North,  who  after  a  trial 
which  lasted  five  days  gave  judgment  in  favour  of  the  defendants. 
The  said  pamphlet  is  a  fair,  accurate  and  honest  report  of  the  said 

(581) 


510  PRECEDENTS    OF    TLEADINGS,    ETC. 

judgment  of  the  Honourable  Mr.  Justice  North,  and  was  published 
by  the  defendants  bond  fide  and  with  the  honest  intention  of  making 
known  the  true  fads  of  the  case,  and  in  order  to  protect  their 
reputation  and  their  said  business,  and  in  reasonable  self-defence, 
and  without  any  malice  towards  the  plaintiff." 


No.  GO. 

Report  of  a  Public  Meeting  privileged  by  virtue  of  Sect.  2  of  the 
Newspaper  Libel  and  Registration  Act,  1881. 

The  words  set  out  in  paragraph  4  of  the  statement  of  claim  were 
printed  and  published  in  a  newspaper  and  were  part  of  a  report  of 
the  proceedings  of  a  public  meeting  which  was  lawfully  convened 
for  a  lawful  purpose  and  open  to  the  public,  and  such  report  was 
fair  and  accurate  and  was  published  without  malice,  and  the  pub- 
lication of  the  said  words  was  for  the  public  benefit. 

It  is  not  sufficient  to  allege  that  the  publication  of  the  said  report  was  for  the 
public  benefit  (Pankhurst  v.  Sowler,  3  Times  L.  R.  193,  ante,  p.  381). 


No.  61. 
Reply  to  above. 


The  defendant  has  refused  to  insert  in  the  newspaper  in  which 
the  report  containing  the  said  words  appeared,  a  reasonable  letter 
or  statement  of  explanation  or  contradiction  by  or  on  behalf  of  the 
plaintiff. 

[*653]  No.   62. 

Statute  of  Limitations. 

The  alleged  cause  of  action  did  not  accrue  within  six  years  before^ 
this  suit. 

Or  in  the  case  of  slander  actionable  per  se: 

The  wordsjcomplaiued  of  were  not  spoken  within  two  years  before 
this  suit.     (See  ante,  p.  520.) 

Or, 

The  defendant  will  rely  upon  the  Statute  of  Limitations  (21  Jac. 
I.  c.   16). 

No.  63. 

Previous  Action. 

The  plaintiff  heretofore,  to-wit,  on  the day  of 1887 

(date  of  writ),  sued  the  defendant  in  the  Division   of  this 

(582) 


PLEAS    OF    PRIVILEGE.  511 

Honourable  Court,  for  the  same  cause  of  action  as  is  alleged  in  the 
statement  of  claim  herein  ;  ami  such  proceedings  were  thereupon  had 
in  that  action  that  the  plaintiff  afterwards  by  the  judgmenl  of  the 

said  court  recovered  againsl   the  defendanl    ,£' for  the  Baid 

cause  of  action,  and  his  costs  of  suit  in  that-  behalf  ;  and  the  said 
judgment  still  remains  in  force.  [State  in  the  margin  of  the  plea 
the  date  when  such  judgment  n-os  signed,  and  tin  number  of  tin  roll 
in  which  such  proceedings  are  entered.  (Reg.  Gen.  Hilary  Term, 
1853,  r.   10.)] 

A  plea  that  judgment  vas  recovered  against  a  joint  jndlisher  will 
also  be  a  bar  to  an  action  against  the  others  for  tin  sunn;  publica- 
tion. [Ante,  p.  522  ;  and  see  form  of plea  in  Duke  of  Brunswick 
v.  Pepper,  2  C.  &  K.  083,  n.)  ' 

A  plea  that  in  a  former  action  judgment  was  given  against  the 
plaintiff,  is  really  a  plea  in  estoppel.      Commence  as  above. 

And  such  proceedings  were  thereupon  had  in  that  action  that 
afterwards  and  before  this  suit  it  was  adjudged  that  the  plaintiff 
should  recover  nothing  against  the  defendant,  ami  that  the  defend- 
ant should  recover  against  the  plaintiff   £ for  his  costs  of* 

defence.       The   said    judgment   was  signed  on    the day   of 

1887,  and  still  remains  in  force.       [The    proceedings   are 

entered  on  roll,  No.  .]     Wherefore  the   defendant  says   that 

the  plaintiff  is  estopped,  and  ought  not  to  be  admitted  to  bring  the 
present  action  against  the  defendant. 


[*G54]  No.  04. 

Accord  and  Satisfaction. 

The  plaintiff  was  the  proprietor  and  publisher  of  a  certain  weekly 
journal  called  the  "Musical  Review"  ;  and  the  defendant  was  the 
proprietor  and  publisher  of  another  weekly  journal  called  the  "  Or- 
chestra." And  after  the  publication,  if  any,  of  the  said  words  the 
plaintiff  and  defendant  agreed  together  to  accept  certain  mutual 
apologies,  to  be  published  by  the  plaintiff  and  defendant  respect- 
ively in  their  said  weekly  journals,  in  full  satisfaction  and  discharge 
of  all  the  causes  and  rights  of  action  in  the  declaration  mentioned 
and  all  damages  and  costs  sustained  by  the  plaintiff  in  respect 
thereof.  And  thereupon,  in  pursuance  of  the  said  agreement,  the 
defendant  did  on  the  14th  of  May,  1804,  print  and  publish  his  part 
of  the  said  mutual  apologies  in  the  form  agreed  on  in  his  weekly 
journal,  the  "  Orchestra,"  of  which  the  plaintiff  had  notice.  And 
the  plaintiff  did  also  after  the  making  of  the  said  agreement  and  in 
pursuance  thereof,  to-wit,  on  the  14th  of  May,  1804,  print  and 
publish  his  part  of  the  said  apologies  in  the  form  agreed  on  in  his 
said  weekly  journal,  the  "  Musical  Review."  And  such  apologies 
so  published  as  aforesaid  the  plaintiff  accepted  and  received  in  full 
satisfaction  and  discharge  of  the  causes  of  action  set  out  in  the 
statement  of  claim. 

See  Boosey  v.  ^Yood,  3  II.  &  C.  484  ;    34  L.  J.  Ex.  05. 


512  PRECEDENTS    OF    PLEADINGS,    ETC. 

No.    65. 

Another  Form. 

Marks  v.  Conservative  Newspaper  Co.,  Limited,  3  Times 

L.  R..244. 

"2.  On  the  18th  day  of  June,  1886,  and  before  the  commence- 
ment of  this  action  the  plaintiff  agreed  with  the  defendants  that  if 
the  defendants  would  publish  in  the  said  "Evening  News"  a  letter 
written  by  the  plaintiff  and  contradicting  the  statements  made  in 
the  alleged  libel,  he,  the  plaintiff,  would  accept. the  publication  of 
such  letter  in  full  satisfaction  and  discharge  of  any  claim  which  he 
might  have  against  the  defendants. 

"  3.  The  defendants  in  pursuance  of  such  agreement  did  on  the 
said  18th  day  of  June,  1886,  publish  such  letter  as  aforesaid,  and  the 
plaintiff  accepted  such  publication  in  full  satisfaction  and  discharge 
of  the  alleged  cause  of  action." 


[*655]  No.  66. 

Payment  into  Court. 

Weldon  v.  Routledge  &  Sons. 

"  Defendants  admit  that  they  are  liable  in  damages  to  plaintiff  in 
respect  of  the  matter  in  question,  and  pay  into  court  the  sum  of 
£26  5.9.  in  full  satisfaction  of  plaintiff's  claim,  but  they  do  not 
admit  that  the  words  published  are  capable  of  bearing  the  innuen- 
does put  upon  them  by  plaintiff  in  her  statement  of  claim." 


No.  67. 

Words  spoken  by  the  Defendant  when  Drunk — Payment  into  Court 
and  Apology. 

Defence. 

"The  defendant  brings  into  court  the  sum  of  £5,  and  says  that 
the  same  is  sufficient  to  satisfy  the  plaintiffs'  claim  in  this  action. 

Particulars. 

The  defendant  proposes  to  give  evidence  at  the  trial  of  the  follow- 
ing matters,  with  a  view  to  mitigation  of  damages  : — 

The  defendant  was  a  total  stranger  to  both  plaintiffs  and  bore  no 
malice  to  either.  He  was  drunk  when  he  uttered  the  said  words, 
and  the  fact  that  he  was  drunk  was  obvious  to  all  who  heard  them. 
He  has  no  recollection  of  having  ever  uttered  any  such  words,  but 
does  not  dispute  that  he  did  so.  Everyone  who  heard  what  the 
defendant  said  was  fully  aware  that  he  was  not  speaking  deliberately 
and  that  he  did  not  seriously  mean  to  make  any  charge  against 

(584) 


APOLOGY;  513 

either  plaintiff,  but  was  talking  wildly  in  consequence  of  drink. 
The  said  words  arc  wholly  untrue.  There  is  and  was  no  foundation 
whatever  for  any  such  statement.  The  defendant  exceedingly 
regrets  that  he  should  ever  have  uttered  any  such  words  ;  be  unre- 
servedly withdraws  all  imputation  <>n  the  plaintiffs'  character,  and 
apologizes  for  the  abusive  Language  which  he  uttered  without  any 
reason  while  under  the  influence  of  liquor. 

(Signed) 
Delivered,  &c." 

[KB. — These  particulars  are  not  delivered  under  Older  XXXVI.  r.  37,  but 
are  part  of  the  pleading  ;  see  ante,  p.  542. 


[*G5G]  No.   68. 

Payment  into  Court  and  Particulars  under  Order  XXXVI.  r.  37. 

1.  The  defendants  admit  that  they  sold  and  circulated  the  book 

called  "■ ,"  and  that  the  same  contained  the  words  set  out 

in  paragraph  3  of  the  statement  of  claim.  They  deny  that  the  said 
words  are  capable  of  the  meanings  alleged  in  the  innuendoes  con- 
tained in  the  said  paragraph,  but  they  admit  that  the  said  wort  Is  are 
libellous,  and  that  they  refer  to  the  plaintiff. 

2.  The  defendants  bring  into   court  the  sum  of  £ — ,  and  say 

that  the  same  is  sufficient  to  satisfy  the  plaintiff's  claim  in  this  action. 

(Signed) 

Particidars. 

Delivered  pursuant  to  Order  XXXVI.  r.  37. 

Take  notice  that  at  the  trial  of  this  action  the  defendants  intend 
to  give  the  following  matters  in  evidence  with  a  view  to  mitigation 
of  damages  : — 

[N.B. — There  is  nothing  to  prevent  such  particulars  being  printed  on  the 
same  piece  of  paper  as  the  defence,  if  the  defendant  washes  it.] 


No.   09. 
Pleading  an  Apology. 


Defence. 

"  1.  The  defendant  by  the  words  set  out  in  the  statement  of  claim 
did  not  mean  or  imply  that  the  plaintiff  had  in  any  way  been  guilty 
of  fraudulent  or  dishonest  practices,  nor  was  he  so  understood  by 
anyone  who  heard  him.  The  said  words  do  not  bear  any  such 
meaning  as  is  alleged  in  paragraph  8  of  the  statement  of  claim. 

"  2.  The  defendant  has  paid  into  court  the  sum  of  fifteen  guineas, 

33   LIB.  &  SLAN.  (585) 


514  PRECEDENTS    OF    PLEADINGS,    ETC. 

and  says  that  the  same  is  sufficient  to  satisfy  the  plaintiff's  claim 
in  this  action. 

"  3.  At  the  earliest  opportunity   af^er  the  commencement  of  this 
action  the  defendant   made  and  offered  an  apology  to  the  plaintiff 
for  the  said  words  by  means  of  a  letter  written  by  the  defendant's 
solicitors  to  the  plaintiff's  solicitor  in  the  following  words  : — 
[Here  set  out  letter  with  date.\ 

[*G57]  "  4.  On  the  31st  day  of  October  1882  the  defendant  caused 

to  be  printed  in   the Journal  the  following  apology  to  the 

plaintiff  for  the  said  words  : — 

Apology.* 

I? of desire   to  express   my  sincere   regret  that  I 

incautiously  repeated  a  statement  made  to  me  by  one  of  my  father's 

clerks  concerning  Mr.  K.  of .     Such  statement  now  proves  to 

have  been  wholly  unfounded,  and  I  beg  to  withdraw  and  contradict 
the  same,  and  to  apologize  to  Mr.  K.  for  having  made  it. 

An  action  having  been  commenced  against  me  by  Mr.  K.  for 
slander,  I  have  this  day  paid  into  Court  the  sum  of  £15  15s.,  and  I 
trust  that. Mr.  K.  Avill  accept  that  sum,  together  with  this  apology, 
as  the  best  amends  it  is  in  my  power  to  make  for  the  injury  or 
annoyance  which  I  have  inadvertently  caused  him. 

Dated  this  25th  day  of  October  1882. 

(Signed) 

[Defendant.] 

Witness, 
A.  B., 
Solicitor. 

"  This  apology  also  appeared  in  the  issue  of  the  said  journal  for 
November  7th,  and  will  appear  in  the  next  four  consecutive  issues 
thereof. 

"  5.  Take  notice  that  the  defendant  intends  on  the  trial  of  this 
action  to  give  in  evidence  in  mitigation  of  damages  the  matters 
alleged  in  paragraphs  3  and  4  above." 

*  The  jury  at  the  trial  found  this  apology  sufficient. 


No.  70. 
Reply  to  above  Defence. 


"  1.  The  plaintiff  joins  issue  upon  the  defence,  except  so  far  as  it 
admits  any  part  of  the  statement  of  claim. 

"  2.  The  plaintiff  as  to  paragraph  2  of  the  defence,  says  that  the 
said  sum  alleged  as  paid  into  court  by  the  defendant  is  not  enough 
to  satisfy  the  claim  of  the  plaintiff. 

"  3.  In  answer  to  paragraph  4  of  the  defence  the  plaintiff  says 
that  [*658]  he  never  agreed  to  accept  the  apology  set  out  in  the  said 

(586) 


APOLOGY.  515 

paragraph  ;  but  the  same  was  inserted  in  tin Journal  without 

his  knowledge  or  consent,  and  on  the  31st  October  1882,  being  three 
months  after  the  plaintiff  had  complained  to  the  defendant  of  the 
slanderous  words  mentioned  in  the  statement  of  claim.  The  so-called 

apology  is  evasive,  indefinite,  insufficient  and  useless,  and  is  not  in 
fact  any  compensation  or  amends  whatever  for  the  slanderous  words 
complained  of." 

No.  71. 

Notice  under  the  6  <&  7  Vict.  c.  96,  s.  1. 

1886.— B.— No.  732. 
In  the  High  Court  of  Justice, 
Queen's  Bench  Division. 

Between  A.B.         .         .     Plaintiff, 
and 
F.F         .         .     Defendant, 
Take  notice,  that  the  defendant  intends  on  the  trial  of   this  cause 
to  give  in  evidence  in  mitigation  of  damages,  if  any  shall  be  found 
to  be  due,  that  he  made  [or  offered]  an  apology  to  the  plaintiff  for 
the  defamation  complained  of    in  the  statement  of  claim  herein, 
before  the  commencement  of  this  action  [or  as  soon  after  the   com- 
mencement of  this  action  as  there  was  an  opportunity  of  making  or 
offering  such  apology,  the   action  having  been   commenced  before 
there  was  an  opportunity  of  making  or  offering  such  apology].  Such 

apology  was  published  by  the  defendant  in  the News  for  the 

-"day  of 18—. 

Yours,  &c, 
G.H.,  defendant's  solicitor  [or  agent]. 
To  Mr.  CD.,  plaintiff's 
solicitor  or  agent. 


No.  72. 

Plea  under  Sect.  2  of  6  &  7  Vict.  c.  96. 

The  alleged  libel  was  contained  in  a  public  daily  newspaper  called 

the Daily  Press,  and  was  inserted  in  such  newspaper  without 

[*659]  actual  malice  and  without  gross  negligence.  Before  [or  At 
the  earliest  opportunity  after]  the  commencement  of  this  action  the 
defendant  inserted  in  'several  issues  of  the  said  newspaper  a  full 
apology  for  the  said  libel  according  to  the  statute  in  such  ease  made 
and  provided  ;  and  the  defendant  immediately  after  the  commence- 
ment of  this  action  paid  the  sum  of  forty  shillings  into  Court  in  the 
said  action  by  way  of  amends  for  the  injury  sustained  by  the  plain- 
tiff for  the  publication  of  the  said  libel,  and  gave  notice  of  such 
payment  into  Court  to  the  plaintiff.  And  the  defendant' says  that 
the  said  sum  is  enough  to  satisfy  the  claim  of  the  plaintiff  in  respect 
of  the  said  libel. 

(587) 


516  precedents  of  pleadings,  etc. 

Interrogatories  and  Answers. 

No.  73. 

Interrogatories    in  an    Action    against    a    Newspaper  Proprietor 
(allowed  in  Lefroy  v.  Durnside,  4  L.  It.  (Ir.)  340  ;  41  L.  T.  199  ; 
14  Cox,  C.  C.   260  ;  ante,  p.  553). 
"  Interrogatories  on  behalf  of  the  above-named  plaintiff  for  the 

examination  of  the  above-named  defendant  : — 

1.  Is  it  not  the  fact  that  in  the  said  newspaper  published  on  the 
6th  day  of  Jnly  1878,  or  some  other  and  what  date,  an  artiele 
appeared  in  the  words  and  figures  set  forth  in  the  sixth  paragraph 
of  the  statement  of  claim  in  this  action  ?     If  not  how  otherwise  ? 

2.  Were  not  yon,  the  defendant  William  Burnside,  upon  and 
before  the  said  6th  day  of  July  1887,  or  some  other  and  what  date, 
the  proprietor,  either'  alone  or  jointly  with  some  other  and  what 
person  or  persons,  of  the  said  newspaper  ? 

N0TE.-— The  defendant  must  answer  the  above  interrogatories  on 
oath  within  ten  days. 

Delivered  the day  of ,  by,  &c." 


No.  74. 

"  Interrogatories  on  behalf  of  the  Plaintiff  to  be  answered  by  an 

Officer  of  the1  Leeds  Daily  News  Company  (Limited)"1  and  by  the 

defendant  William  Lauries  Jackson. 

1.'  Is  the  defendant  William  Lauries  Jackson  the  editor  or  pub- 
lisher of  the  '  Leeds  Daily  News,'  and  what  position  does  he  occupy 
in  respect  of  the  said  newspaper  f 

[*660]  2.  Is  the  said  William  Lauries  Jackson  a  shareholder  in 
the  said  company  ? 

3.  Is  it  the  duty  of  the  said  William  Lauries  Jackson  to  exercise 
a  supervision  over  paragraphs  of  the  nature  of  those  set  out  in  the 
statement  of  claim  ? 

4.  Did  the  said  William  Lauries  Jackson  write,  or  have  anything 
to  do  with  the  writing  of  any  and  which  of  the  jmragraphs  men- 
tioned in  the  statement  of  claim :  and,  if  not,  who  was  the  writer 
of  such  paragraphs,  and  of  each  of  them  ? 

5.  Did  the  said  William  ^Lauries  Jackson  see  any  and  which 
of  the  said  paragraphs  before  they  were  inserted  in  the  newspaper 
or  before  the  newspaper  was  published  or  circulated,  and  did  he 
sanction  the  jyublication  of  the  said  paragraphs,  or  of  any  and 
tohich  of  them  f 

6.  By  whom,  and  in  what  way,  were  the  said  paragraphs  brought 
to  the  office  of  the  newspaper  company  ;  or  were  they  received  by 
anyone  else,  and  whom,  on  their  account,  at  one  time  ;  and,  if  not, 
when  were  they  received  ? 

7.  Were  the  numbers  of  the  'Leeds  Daily  News '  of  the  13th 
August  1875,    19th  August   1875,   10th  September  1875,  and  the 

(588) 


INTERROGATORIES    AND    ANSWERS.  517 

numbers  of  the  'Leeds  Daily  News'  containing  the  paragraph  com- 
mencing with  the  word  'Query,'  printed  and  published  by  the  Leeds 
Daily  News  Company  (Limited)  or  by  the  defendanl  William 
Lauiies  Jackson  or  by  both  of  them  ?" 

[The  words  in  italics  were  struck  out  by  Archibald,  J.,  at  Chambers, and  the 
rest  allowed,  on  January  8th  1876.  See  Weekly  Notes  for  1870,  p.  11  ;  1 
Charley,  101  ;  Bitt.  91  ;  20  Sol.  J.  218  ;  60.  L.  T.  Notes,  196. J 


No.  75. 

Bedford  v.  Colt. 

Interrogatories. 


"  1.  Did  you  write  or  cause  to  be  written  the  letter  to  the  editor 
dated  23rd  November  1881,  published  in  the  '  Hereford  Times  '  of 
26th  November  1881,  under  the  heading  of  '  The  distraint  for  rent 
case  at  Leominster,'  and  signed  by  your  name  T.  A.  Colt  ? 

"  2.  By  your  allegation  in  that  letter  that  one  of  the  holders  of 
the  bill  of  sale  mentioned  in  your  letter  had  affirmed  sometime  since 
in  a  court  of  law  that  he  did  not  possess  a  £5  note,  did  you  intend 
to  refer  to  the  plaintiff  or  to  Mr.  George  Bedford,  the  proprietor 
of  the  Royal  Oak  Hotel  in  Leominster  ?  " 


[*66l]  No.  76. 

Answer. 

"  In  answer  to  the  first  and  second  of  the  said  interrogatories,  I 
say  that  I  object  to  answer  the  same,  on  the  ground  that  the  same 
cannot  legally  be  asked  by  way  of  interrogatories,  and  also  upon  the 
grounds  that* they  seek  discovery  of  evidence  which  relates  exclu- 
sively to  my  case,  and  that  such  discovery  is  not  sufficiently  material 
at  this  stage  of  the  action." 

[This  answer  was  held  insufficient  by  the  Divisional  Court,  Grove  and  Lopes. 
JJ.,  on  the  authority  of  Allhvsen  v.  Labouehere,  (C.  A.)  3  Q.  B.  D.  654;  47 
L.  J.  Ch.  819  ;  48  L.  J.  Q.  B.  34 ;  27  W.  R.  12 ;  39  L.  T.  207,  and  the  defend- 
ant was  ordered  to  file  further  and  better  answers  (May  4th,  1882).] 


No.  77. 

Interrogatories  in  Jones  v.  Richards,  15  Q.  B.  D.  439. 

"  1.  Did  you,  on  or  about  the  16th  of  February  1885,  or  at  some 
other  and  what  date,  write  and  send  or  cause  to  be  sent  to  Colonel 
Pryse,  of  &c,  a  letter  of  which  a  copy  is  annexed  hereto,  marked  A, 
of  which  the  original  will,  if  you  require  it,  be  shown  to  you  before 

(.589; 


518  PRECEDENTS    OF    PLEADINGS,    ETC. 

swearing  your  affidavit  in  answer  to  these  interrogatories,  on  your 
giving  reasonable  notice  in  that  behalf  ? 

"2.  Did  you  on  or  about  the  20th  of  January  1885,  or  at  some 
other  and  what  date,  write  and  send  or  cause  to  be  sent  a  letter  of 
which  a  copy  is  annexed  marked  B  [the  latter  containing  the  alleged 
libel],  of  which  the  original  will,  if  you  require  it,  be  shown  to  you 
before  swearing  your  affidavit  in  answer  to  these  interrogatories,  on 
your  giving  reasonable  notice  in  that  behalf  ?  " 


No.  78. 
Answers  thereto. 


"  1.  I  object  to  answer  the  interrogatory  numbered  1,  on  the 
ground  that  the  same  is  irrelevant  for  the  purposes  of  this  action. 

"  2.  I  object  to  answer  the  interrogatory  numbered  2,  on  the  ground 
that  I  am  advised  and  believe  that  my  answer  thereto  might  tend  to 
criminate  me." 

[The  court  held  the  answer  to  the  first  interrogatory  insufficient,  the  question 
being  relevant  as  leading  up  to  a  matter  in  issue  in  the  cause  ;  see  ante,  p.  547.] 


(591  >) 


PRECEDENTS    OF    PLEADINGS.  519 


II.  PRECEDENTS  OF  PLEADINGS  IN  ACTIONS 
FOR  SLANDER  OF  TITLE. 

[*662]  No.  79. 

Libel  on  goods  manufactured  and  sold  by  another. 

Western  Counties  Manure  Co.  v.  Lawes  Chemical  Manure 
Co.  (L.  R.  9  Ex.  218  ;  43  L.  J.  Ex.  171  ;  23  W.  R.  5  ;  ante,  p.  149.) 

Declaration. 

"  In  the  Exchequer  of  Pleas. 

The  3rd  day  of  February,  a.d.  1874. 
Devonshire  to  wit. 

The  Western  Counties  and  General  Manure  Co.,  Limited,  by 
William  Harris,  their  attorney,  sue  the  Lawes  Chemical  Manure  Co., 
Limited,  for  that  at  the  time  of  the  committing  of  the  grievances 
hereinafter  mentioned  the  plaintiffs  carried  on  business,  and  still  do 
carry  on  business,  as  amongst  other  things  manufacturers  of  and 
sellers  of  artificial  manures,  and  had  and  still  have  upon  sale  certain 
artificial  manures,  and  the  plaintiffs  say  that  the  defendants  well 
knowing  that  the  plaintiffs  were  carrying  on  the  aforesaid  business 
and  selling  the  said  artificial  manures,  and  contriving  and  intending 
to  injure  the  plaintiffs  in  their  said  business,  falsely  and  maliciously 
printed  and  published  and  caused  to  be  printed  and  published  of  and 
concerning  the  plaintiffs,  and  of  and  concerning  them  as  such  manu- 
facturers and  sellers  of  artificial  manures,  and  of  and  concerning 
them  in  the  way  of  their  said  business,  the  words  following,  that  is 
to  say  : — [For  the  words  of  the  libel,  see  the  report  of  the  case]  ; 
meaning  thereby  that  the  said  artificial  manures  so  manufactured 
sold  and  traded  in  by  the  plaintiffs  were  artificial  manures  of  an 
inferior  quality  to  the  said  other  artificial  manures  and  especially 
were  of  an  inferior  quality  to  the  said  artificial  manures  of  the 
defendants  ;  whereas  in  truth  and  in  fact  the  said  artificial  manures 
so  manufactured,  sold  and  traded  in  by  the  plaintiffs  were  not  of  an 
inferior  quality  and  especially  were  not  inferior  in  quality  to  the 
said  artificial  manures  of  the  defendants  as  the  defendants  well 
knew  •*  and  by  reason  of  the  premises  certain  persons  and  par- 
ticularly George  Snell  and  A.  Rowe  who  before  [*  663]  and  at  the 
time  of  the  committing  of  the  grievances  hereinbefore  mentioned 
had  been  used  to  buy  the  said  artificial  manures  so  manufactured, 
sold  and  traded  in  by  the  plaintiffs  ceased  to  do  so,  and  certain 
other  persons  and  particularly  Geo.  May  and  Samuel  Harvey  who 
*  The  words  in  italics  were  subsequently  struck  out  by  consent. 

(591) 


520  PRECEDENTS    OF    PLEADINGS. 

would  have  bought  the  said  artificial  manures  of  the  plaintiffs  were 
induced  to  refrain  from  buying'  the  same  ;  whereby  the  plaintiffs 
have  been  prejudiced  and  injured  iii  their  said  trade  and  business, 
and  the  reputation  of  the  said  artificial  manures  so  manufactured 
by  the  plaintiffs  has  been  injured,  and  the  sale  thereof  has  been 
much  diminished  and  fallen  oif,  and  the  plaintiffs  have  been  greatly 
injured  in  their  credit,  reputation  and  circumstances,  and  have  been 
and  are  thereby  prevented  from  acquiring  divers  great  gains  which 
they  might  and  otherwise  would  have  acquired. 
And  the  plaintiffs  claim  ^2,000." 


No.  80.. 
Pleas. 

"  In  the  Exchequer  of  Pleas. 
"The  23rd  of  February  1874. 

"  1.  The  defendants  by  Arthur  P.  Power  their  attorney  say  that 
they  are  not  guilty. 

"  2.  And  for  a  second  plea,  the  defendants  say  that  the  alleged 
words  are  true  in  substance  and  in  fact. 

"  3.  Ahd  for  a  third  plea,  the  defendants  deny  the  .allegations 
in  the  declaration  contained  that  the  said  artificial  manures  manu- 
factured, sold  and  traded  in  by  the  plaintiffs  were  not  inferior  in 
quality  to  the  said  artificial  manures  to  the  defendants'  knowledge, 
as  alleged." 

Feb.  23  1874. 

Order  by  Master  George  Pollock,  giving  the  defendants  leave  to 
plead  the  several  matters.  Plaintiffs  to  be  at  liberty  to  demur  to 
the  third  plea.  Particulars  of  the  second  plea  to  be  delivered 
within  three  days. 


[*664J  No.  81. 

Replication. 

"Feb.  27  1874. 

"  The  plaintiffs  join  issue  upon  all  the  defendants'  pleas. 

"  And  the  plaintiffs  say  that  the  defendants'  third  plea  is  bad  in 
substance. 

\_In  Margin.~\ 

"A  matter  of  law  intended  to  be  argued  is  that  the  defendants' 
knowledge  that  the  plaintiffs'  manures  were  not  inferior  to  their  own 
is  immaterial,  and  that  the  plea  is  therefore  no  answer  to  the  action." 

(592) 


IN    SLANDER    OF    TITLE.  521 

No.  82. 

Lawes,  &c.  Co.  ats.  "Western,  dbc.  Co. 

Joinder  in  Demurrer. 
"Feb.  28  1874. 

"  The  defendants  say  that  the  said  third  plea  is  good  in  sub- 
stance."  

No.  83. 

Points. 

"  The  following  are  the  points  intended  to  be  insisted  on  by  the 
plaintiffs  upon  the  argument  of  this  demurrer  : — 

"  1.  That  the  defendants'  third  plea  is  bad  in  substance. 

"  2.  That  the  defendants'  knowledge  that  the  plaintiffs'  manures 
were  not  inferior  to  their  own  is  immaterial,  and  that  the  plea  is 
therefore  no  answer  to  the  action. 

"  3.  That  the  declaration  is  good  without  the  allegations  denied 
in  the  third  plea." 

Subsequently,  for  convenience  sake,  and  by  agreement  between  the  counsel 
for  the  parties'respectively,  the  plaintiffs  amended  their  pleadings  by  striking 
out  the  averment  "as  the  defendants  well  knew,"  and  the  defendants  withdrew 
their  third  plea  and  demurred  to  the  declaration  instead.  This  demurrer  was 
decided  in  favor  of  the  plaintiffs,  and  the  case  was  subsequently  settled  with- 
out going  to  trial.     A  Stet  Processus  was  entered  on  October  9th,  1874. 


[*665]  No.   84. 

Interrogatories. 

"  Interrogatories  to  be  answered  by  the  secretary  or  manager  or 
some  other  person  on  behalf  of  the  defendants,  by  affidavit  in  writ- 
ing, to  be  sworn  and  filed  in  the  ordinary  way  pursuant    to  the 

order   of   the    Hon. ,  dated    the day    of ,  a.d. 

1874. 

"  1.  Was  one  W.  M.  W.  an  agent  or  servant,  or  in  the  employ  of 
the  defendants  in  or  about  the  month  of  February  1873,  for  the  sale 
of  their  manures,  or  for  any  other  purpose,  in  Plymouth  or  elsewhere, 
in  the  county  of  Devon,  or  in  the  county  of  Cornwall  ? 

"  2.  Was  any,  and  what,  inquiry  made  by  the  said  W.  M.  W.  of 
J.  M.,  then  the  secretary  of  the  Devon  and  Cornwall  Chambers  of 
Agriculture,  in  or  about  "the  month  of  February  1873,  respecting 
certain  manures  sent  by  the  said  J.  M.,  for  analysis,  to  Professor  A.? 
Was  the  said  inquiry,  if  any,  made  by  the  express  authority  of  the 
defendants,  or  would  it  have  been  within  the  general  authority  of  the 
said  W.  M.  W.  to  make  such  inquiry  ?  Did  the  said  J.  M.,  either 
then  or  at  any  time,  give  any,  and  what,  accounts  to  the  defendants 
or  the  said  W.  M.  W.,  or  any  of  their  agents  or  servants,  of   the 

(593) 


5  22  PRECEDENTS    OF    PLEADINGS. 

circumstances  under  which,  the  time  when,  the  place  where,  and  the 
person  or  persons  from  whom  he  had  procured  the  said  manures,  or 
samples  of  manures? 

"  3.  Were  the  said  manures,  or  samples  of  manures,  forwarded  to 
Professor  A.  by  the  authority  of  the  defendants,  or  their  agents  or 
servants,  or  which  of  them? 

"  4.  Was  the  said  J.  M.,  in  or  about  the  month  of  February  1873, 
or  at  any  other  and  what  time,  and  for  how  long,  and  where,  an 
agent  or  servant  of,  or  in  any  way  as  a  shareholder,  customer,  or 
otherwise  connected  with  the  defendants  ? 

"  5.  Did  the  defendants  receive,  in  or  about  the  month  of  February 
1873,  or  at  any  other  and  what  time,  from  the  said  J.  M.,  an  analysis, 
or  copy  of  an  analysis,  made,  or  purporting  to  be  made,  by  Pro- 
fessor A.  of  certain  manures,  or  samples  of  manures?  Did  the 
said  J.  M.,  give  to  the  defendants,  their  agents  or  servants,  any,  and 
what,  account  of  the  time  when,  the  place  where,  and  the  person  or 
persons  from  whom  he  received,  or  became  possessed  of,  the  said 
analysis  ? 

"  6.  Were  the  manures  sold  or  manufactured  by  the  plaintiff 
among  the  manures  so  analysed,  or  purported  to  be  analysed  ?  Did 
the  defendants  print  or  circulate  the  said  analysis  ? 

"  7.  Did  the  defendants  send  a  copy  of  the  said  analysis  to  each 
or  [*666]  any,  or  either  of  their  agents,  and  to  which  of  them  ?  Give 
the  names'  and  addresses  of  the  said  agents. 

"  8.  Was  one  E.  E.,  in  or  about  the  month  of  February  1873,  or 
at  any  other  and  what  time,  an  agent  of,  or  in  any  way  as  a  share- 
holder or  customer,  or  otherwise,  connected  with  the  defendants? 
Did  he,  by  the  authority  or  with  the  sanction  of  the  defendants,  pro- 
cure from  the  plaintiffs,  in  or  about  the  month  of  December  1872, 
or  when,  any,  and  what  samples  of  their  manures  ?  What  was  done 
with  the  samples,  if  any,  'so  obtained  ? 

"  9.  Have  the  defendants  in  their  possession  or  power  any  of  the 
manures  or  samples,  or  portions  of  the  manures  or  samples,  submitted 
for  analysis  to  Professor  A.  ?  " 

10.  Formal  interrogatory  as  to  books,  letters,  documents,  &c. 


No.   85. 

Slander  of  Title  to  Goods. 

C.  v.  D. 

STATEMENT    OF    CLAIM. 


1.  The  plaintiff,  at  all   the  times   hereinafter  mentioned,  was  a 

stone-mason  and  contractor  carrying  on  business  at ,  in  the 

county  of . 

2.  On  or  about  the day  of 1880  the  plaintiff  in 

the  ordinaiy  course  of  his  business  advertised  certain  goods  of  his 

(594) 


IN    SLANDEK    OP    TITLE.  523 

for  sale.  The  following  is  a  copy  of  the  advertisement  : — "  To  be 
sold  by  auction,  by  Mr.  F.  S.,  on  Friday  and  Saturday,  January 
30th  and  31st  1880,  at  the  above  works,  the  whole  of  the  working 
plant,  the  property  of  Mr.  E.  C,  consisting  of,  &c.  [The  adver- 
tisement then  described  a  variety  of  articles,  waggons,  carts,  sleepers, 
planks,  and  materials.]  The  sale  to  commence  each  day  at  twelve, 
o'clock.     Cotsgate  Hill,  Ripon,  January  the  19th  1880." 

3.  Thereupon  the  defendant  on  the  25th  day  of  January  1880 
falsely  and  maliciously  caused  to  be  printed  and  published  of  the 
plaintiff  and  in  relation  to  the  said  intended  sale  the  following 
"  Notice,"  that  is  to  say  : — [here  set  out  the  words  verbatim]  ;  thereby 
meaning  and  intending  to  cause  it  to  be  believed  that  the  goods 
named  in  the  said  advertisement  were  the  property  of  the  defendant 
and  not  of  the  plaintiff,  and  that  no  person  could  safely  purchase 
any  <?oods-to  be  exposed  for  sale  at  the  said  advertised  sale. 

4.  "By  means  of  the  publication  of  the  said  "Notice  "  X.,  Y.  [*667] 
and  Z.,  all  of in  the  said  county,  who  were  desirous  of  pur- 
chasing the  said  goods  or  some  of  them,  and  who  would  otherwise 
have  attended  at  the  said  sale,  and  would  have  bidden  for  and  pur- 
chased the  said  goods  or  the  greater  part  of  them,  were  prevented 
from  attending  at  the  time  and  place  appointed  for  the  sale,  and 
were  deterred  from  bidding  at  such  sale,  and  declined  to  purchase 
the  said  goods  or  any  part  thereof  ;  and  the  plaintiff  was  then  pre- 
vented from  putting  up  the  said  goods  for  sale,  and  was  unable  to 
procure  a  fair  and  reasonable  price  for  the  same,  and  the  said 
intended  sale  failed  altogether  ;  and  the  expenses  incurred  by  the 
plaintiff  in  advertising  and  otherwise  preparing  for  the  said  intended 
sale  were  thrown  away  ;  and  the  plaintiff  lost  the  profits  he  would 
have  made  by  the  sale  of  his  said  goods  and  was  otherwise  much 
injured  and  damnified. 

And  the  plaintiff  claims,  &c. 


No.  86. 

C.  v.  D. 

Defence. 

1.  The  defendant  admits  that  the  plaintiff  caused  to  be  printed 
the  advertisement  set  out  in  paragraph  2  of  the  Statement  of  Claim  ; 
but  denies  that  the  goods  mentioned  in  such  advertisement  were  the 
property  of  the  plaintiff,  and  that  the  intended  sale  by  auction  was 
in  the  ordinary  course  of  the  plaintiff's  trade  and  business. 

2.  The  defendant  admits  that  he  caused  to  be  printed  and  pub- 
lished the  "  Notice "  set  out  in  paragraph  3  of  the  Statement  of 
Claim  ;  but  denies  that  he  did  so  with  the  meaning  in  such  paragraph 
alleged. 

3.  Before  and  at  the  time  of  the  publication  complained  of,  the 
plaintiff  unlawfully  detained  from  the  defendant  certain  timber, 
carts,  rails,  plant  and  materials,  the  property  of  the  defendant.     The 

(595) 


524  PRECEDENTS    OF    PLEADINGS. 

defendant  was  informed  and  believed  that  the  plaintiff  intended  to 
dispose  of  the  same  (among  other  things)  at  the  said  intended  sale 
by  auction.  The  defendant  accordingly  printed  and  published  the 
Baid  "  Notice "  for  the  purpose  of  warning  all  persons  from  pur- 
chasing the  said  goods  and  chattels  so  unlawfully  detained  by  the 
plaintiff  as  aforesaid  and  in  the  bond  fide  belief  that  such  warning 
was  necessary  for  the  protection  of  the  defendant's  own  property, 
and  without  any  malice  towards  the  plaintiff. 

See  Carr  v.  Duckett,  5  H.  &  N.  783  ;  29  L.  J.  Ex.  468. 


[*668]  No.  87. 

Libel  in  the  nature  of  Slander  of  Title. 

Hart  and  Another  v.  Wall  (2  C.  P.  D.  14G  ;  46  L.  J.  C.  P.  227  ; 

25  W.  R.  373). 

Statement  of  Claim. 

"  1.  The  plaintiffs  were  at  the  times  hereinafter  mentioned,  and 
still  are,  vocalists,  and  had  been  and  were  engaged  to  sing  at  the 
'  Sun  Music  Hall,'  Knightsbridge,  and  also  at  the  '  London  Pavilion 
Music  Hall,'  for  reward  payable  to  the  plaintiffs  for  their  services, 
and  they  appeared  and  sang  in  public  under  the  name  of  '  The 
Sisters  Hartridge.' 

"2.  On  the  15th  January  1876  the  defendant  falsely  and  mali- 
ciously wrote  and  published  of  the  plaintiffs,  in  the  form  of  a  letter 
addressed  to  E.  Williams,  Esq.,  the  proprietor  of  the  'Sun  Music 
Hall,'  of  the  plaintiffs  and  of  them  as  such  vocalists,  and  of  their 
engagement  at  the  '  Sun  Music  Hall,'  the  words  following,  that  is 
to  say  : — 'January  15th  1876.  E.  Williams,  Esq.  My  dear  Sir, — 
Although  I  know  it  is  quite  unintentional  on  the  part  of  the  lady 
advertisers  (meaning  the  plaintiffs),  the  advertisement  attached  at 
foot,  if  relied  upon  in  every  particular  by  proprietors  engaging 
them,  is  calculated  to  lead  such  proprietors  to  incur  the  penalties 
under  the  Copyright  Act  in  certain  cases,  as  I  hold  the  power  of 
attorney  over  the  performing  rights  of  certain  musical  publications 
belonging  to  two  houses  therein  named,  who  only  have  the  copy- 
rights vested  in  them,  and  a  separate  and  distinct  property  never 
held  by  them.  If  all  proprietors  knew  this,  it  would  be  best  ;  but 
I  have  not  time  to  apprise  them.  I  remain,  yours  truly,  H.  Wall  ; ' 
meaning  that  the  plaintiffs  had  no  right  to  sing  certain  songs  which 
they  advertised  themselves  as  about  to  sing  at  the  said  music  hall. 

"  3.  In  consequence  thereof,  and  by  the  publication  of  the  said 
words,  E.  Williams  dismissed  the  plaintiffs  from  his  service  and 
terminated  the  said  engagement  at  the  '  Sun  Music  Hall.' 

"4.  On  the  19th  of  January  1876  the  defendant  falsely  and 
maliciously  wrote  and  published  of  the  plaintiffs,  in  the  form  of  a 
letter  addressed  to  E.  Loibl,  Esq.,  the  proprietor  of  the  '  Pavilion 

(.596) 


IN    SLANDER    OF    TITLE.  525 

Music  Hall,'  of  the  plaintiffs,  and  of  them  as  such  vocalists,  and 
their  engagements  at  the  said  music  hall,  the  words  following,  that 
is  to  say: — 'January  19th  1870.  E.  Loibl,  Esq.  Dear  Sir, — That 
you  may  not  be  misled,  I  beg  to  state  that,  with  reference  to  an 
[*6G0]  advertisement  in  the  last  Era,  where  the  Misses  Hartridge 
(meaning  the  plaintiffs)  give  notice  that  they  have  received  unhesi- 
tating permission  to  perform  any  morceaux  from  any  publication  of 
ceit ain  publishers  therein  mentioned,  it  would  be  as  well  for  you  to 
know  that,  if  two  of  the  firms  really  had  pretended  to  have  given 
such  unqualified  sanction,  that  I  hold  powers  of  attorney  over  cer- 
tain publications  issued  by  them  as  to  the  sole  liberty  of  public  per- 
formance, which  right  they  never  possessed.  But  Messrs.  Chappell 
&  Co.'s  representative  to-day  informed  me  that  they  only  granted 
permission  for  two  songs  in  particular  (which  were  named),  and 
they  were  not  aware  it  was  for  music-hall  singing,  as  they  have  a 
poor  opinion  of  such  creating  any  demand  for  their  publications  ; 
and  moreover  that  they  require  the  advertisement  to  be  altered. 
And  Messrs.  Metzler  &  Co.'s  representative,  in  the  presence  and 
hearing  of  Mr.  Brown  (the  head  man  of  Mr.  Cunningham-Boosey), 
yesterday  stated  to  me  that  he  had  granted  no  permission  whatever, 
but  on  the  contrary,  that  they  had  informed  the  ladies  (meaning  the 
plaintiffs)  that  their  charge  for  such  permission  would  be  7s.  per 
night  (£2  2.s.  per  week,)  as  much  again  as  Messrs.  Boosey  named,' 
(meaning  that  the  plaintiffs  had  advertised  themselves  to  sing  at  the 
said  music-hall  songs  which  they  had  no  right  to  sing). 

"  5.  In  consequence  of  the  publication  of  these  words  E.  Loibl 
dismissed  the  plaintiffs  from  his  service,  and  dispensed  with  their 
services  and  refused  to  employ  them  to  sing  at  the  said  music  hall  ; 
and  the  plaintiffs  were  and  are  by  means  of  the  premises  otherwise 
injured. 

"  And  the  plaintiffs  claim  £100  damages." 


(597) 


52G  PRECEDENTS    OF    PLEADINGS 

III.  FORMS    OF    PLEADINGS,  NOTICES,    ETC.,    IN    THE 
COUNTY  COURT. 

[*G70]  No.  88. 

(County  Court  Rules,  1886. — Appendix,  Form  75.) 

Statement   of  Plaintiffs  Cause  of  Action   in  Actions  of  Libel  or 
/Slander  remitted  for  trial  in  a  County  Court. 

In  the  County  Court  of ,  bolden  at . 

Between  A.  B Plaintiff, 

[address  and  description], 
and 
CD.         .         .         .         •         •         Defendant, 

[address  and  description]. 
Being  an  action  of  libel  [or  slander]  commenced  in  Her  Majesty's 
High  Court  of  Justice,  and  remitted  by  order  of  a  Judge  [or  Master 
or  District  Registrar]  thereof  under  sect.  10  of  the  County  Courts 
Act,  1867,  to  be  tried  in  this  court. 

Libel. 

This  action  is  brought  : — 

For  that  the  defendant  falsely  and  maliciously  wrote  and  pub- 
lished of  and  concerning  the  plaintiff  the  words  following  :  "  He  is 
a  liar,  a  blackguard  and  a  scoundrel;  "  and  the  plaintiff  claims  £200 
damages. 

Libel  of  the  Plaintiff  hi  the  way  of  his  Trade. 

Or,  For  that  the  defendant  falsely  and  maliciously  caused  to  be 
printed  and  published  of  and  concerning  the  plaintiff  in  the  way  of 
his  trade  as  a  grocer  the  words  following:  Mr.  A.  B.  sands  his  sugar 
and  dusts  his  pepper ',"  whereby  the  plaintiff  was  injured  in  his  trade, 
and  lost  the  custom  of  several  persons,  particularly  X.,  Y.,  and  Z., 
who  had  before  dealt  at  the  plaintiff's  shop ;  and  the  plaintiff  claims 
£50  damages. 

Slander. 

Or,  For  that  the  defendant  falsely  and  maliciously  spoke  and 
published  of  and  concerning  the  plaintiff  the  words  following  :  "  A. 
B.  is  a  tl def  and  stole  Mrs.  Brown's  ducks;  "  and  the  plaintiff  claims 
£30  damages. 

Slander  of  Plaintiff in  the  way  of  his  Calling. 

Or,  For  that  the  defendant  falsely  and  maliciously  spoke  and 
published  of  and  concerning  the  plaintiff,  in  the  way  of  his  business 
and  calling  as  a  ratcatcher,  the  words  following  :  "  A.B.  is  a  great 
[*671]  rogue,  and  instead  of  doing  his  best  to  kill  the  rats  he  encour- 
ages the  breed,  so  that  he  may  have  more    employment  from    the 

(598) 


IN  THE  COUNTY  COURT.  527 

farmers,'1''  whereby  the  plaintiff  was  injured  in  his  business,  and 
several  farmers,particularly  X.,Y.,  and  Z.,  who  had  usually  employed 
him  to  kill  the  rats  on  their  farms,  ceased  to  do  so;  and  the  plaintiff 
claims  £20  damages. 

Above  is  the  statement  of  the  plaint  ill's  cause  of  action. 

Dated  this day  of ,  18 — . 

A.  B.,  plaintiff, 


or 
E.  T.,  plaintiff's  solicitor. 


To  the  registrar  of  the  court, 
and  to  the  defendant. 


[^  B.  —  The  above  Forms  are  only  given  as  examples  ;  and  the  statement  of  the 
plaintiff's  cause  of  action  must  in  all  cases  be  according  to  the  facts,  and  be  as  con- 
cise as  jwssible.] 


No.   89. 

(County  Court  Rules,  1886.— Appendix,  Form  76.) 

Notice  of  Trial  of  Action  of  Libel  or  Slander  remitted  for  trial  in  a 

County    Court. 

Being  an  action  of  libel  [or  slander]  commenced  in  the  High 
Court  of  Justice,  and  remitted  by  order  of  a  Judge  thereof  [or 
Master  or  District  Registrar],  under  sect.  10  of  the  County  Courts 
Act,  1861,  to  be  tried  in  this  court. 

Take  notice  that  this  action  will  be  tried  at  a  court  to  be  holden 
on  the day  of ,  at  —  o'clock  in  the  forenoon. 

[jV".  B.—  To  the  notice  sent  to  the  defendant  the  registrar  must  annex  a  copy  of 
the  statement  of  the  plaintiff's  cause  of  action .  ] 


No.  90. 

(County  Court  Rules,  1886.— Appendix,  Form  95.) 

Notice  of  Sjyecial  Defence. 

Take  notice  that  the  defendant  intends  at  the  hearing  of  this 
action  to  give  in  evidence  and  rely  upon  the  following  ground  of 
defence  : 

Dated  this day  of ,  18—. 

The  defendant  [or  Defendant's  solicitor.] 

To  the  registrar  of  the  court. 

(599) 


528  PRECEDENTS    OF    PLEADINGS. 

[*672]  Justification. 

That  the   libel  [or  slander]   complained  of  is   true   in  substance 
and  in  fact. 

[N.  B. — Notices  of  Special  Deft  nee,  in  cases  commenced  in  a  Superior  Court, 
and  sent  to  the  County  Court  for  trial  under  sect.   10  of  30  &  31  Vict.  c.  142, 

must  have,  in  addition  to  the  usual  hradiiajs,   the  special  headings  provided  for 
tiiose  cases  ] 


No.  91. 

(County  Court   Rules,  1886. — Appendix,  Form  96.) 

Notice  to  be  given  by  the  Defendant  under  6  &  7  Vict.  c.  9G,  s.  l,in 
an  Action  for  Libel  or  Slander  remitted  for  trial  in  a  County 

Court. 

Being  an  action  for  libel  [or  slander]  commenced  in  the  High 
Court  of  Justice,  and  remitted  by  order  of  a  Judge  [or  Master  or 
District  Registrar]  thereof  under  sect.  10  of  the  County  Courts  Act, 
1867,  to  be  tried  before  this  court. 

Take  notice  that  the  defendant  on  the  trial  of  this  action  will  give 
in  evidence  in  mitigation  of  damages  that  he  made  [or  offered  an 
apology  to  the  plaintiff  for  the  libel  [or  slander]  complained  of  be- 
fore the  commencement  of  the  action,  [or  as  soon  after  the  com- 
mencement of  the  action  as  he  had  an  opportunity  of  so  doing.] 

To  the  registrar  of  the  court 
and  to  the  plaintiff. 


No.   92. 
(County  Court  Rules,  1886 — Appendix,  Form  97. 

Notice  to  be  given  by  defendant  tinder  6  &  7  Vict.  c.  96,  s.  2,  in  an 
Action  for  Libel  remitted  for  trial  in  a  County  Court. 

Being  an  action  for  libel  commenced  in  the  High  Court  of  Jus- 
tice, and  remitted  by  order  of  a  Judge  [or  Master  or  District  Reg- 
istrar] thereof  under  sect.  10  of  the  County  Courts  Act,  1867,  to  be 
tried  before  this  court. 

Take  notice,  that  the  defendant  on  the  trial  of  this  action  will  give 
[*673]  in  evidence  and  rely  upon  the  following  ground  of  defence  ; 
(that  is  to  say,) 

That  the  libel  was  inserted  in  the  newspaper  called  or  known  by 
the  name  of without  actual  malice  and  without  gross  negli- 
gence, and  that  before  the  commencement  of  the  action  [  or  as  soon 
after  the  commencement  of  the  action  as  he  had  an  opportunity  of 
doing  so]  the  defendant  inserted  in  the  said  newspaper  [  or  offered 

(600) 


CRIMINAL    PROCEEDINGS.  529 

to  publish  in  any  newspaper  or  periodical  publication  to  be  selected 
by  the  plaintiff]    a  full  apology   for   the    said    libel,  and    that   the 

defendant  has  paid  into  court  £ by  way  of   amends   for  the 

injury   sustained  by  the   plaintiff   by   the   publication   of  the  said 
libel. 

Dated  this day  of ,  1 8 — . 

C.  D.,  defendant, 

or 
E.  F1.,  defendant's  solicitor. 
To  the  registrar  of  the  court 
and  to  the  plaintiff. 

[  j\T  j) — If  the  libel  was  published  in  any  periodical  publication  other  tJian  a 
newspaper,  alter  tlie  notice  accordingly.  ] 


IV.  PRECEDENTS  OF  CRIMINAL  PLEADINGS. 

No.  93. 

Information  for  a  Libel  on  a  private  Individual. 

R.  v.  Newman  (1  E.  &.  B  268,  558  ;  22  L.  J.  Q.  B.  156  ;  17  Jur. 
61V  ;  3  C.  &  K.   252  ;  Dears.  C.  C.  85). 

"  In  the  Queen's  bench. 

"  Michaelmas  Term,  15  Vict.,  a.  d.  1851. 
"  Middlesex  to  wit. 

"  Be  it  remembered,  that  C.  F.  Robinson,  Esq.,  coroner  and  attor- 
ney of  our  Lady  the  Queen  in  the  Court  of  Queen's  Bench,  who 
prosecutes  for  our  said  Lady  the  Queen  in  this  behalf,  comes  here 
into  the  said  Court  at  Westminster,  the  21st  day  of  November,  in 
the  fifteenth  year  of  the  reign  of  our  said  Lady,  and  gives  the  Court 
to  understand  and  be  informed  that  John  Henry  Newman,  doctor  of 
divinity,  late  of  the  parish  of  Aston,  in  the  county  of  Warwick, 
contriving  and  wickedly  and  maliciously  intending  to  injure  and 
[*674]  vilify  one  Giovanni  Giacinto  Achilli,  and  to  bring  him  into 
great  contempt,  scandal,  infamy,  and  disgrace,  on  the  1st  of  Octo- 
ber a.  d.  1851,  did  falsely  and  maliciously  compose  and  publish  a 
certain  false,  scandalous,  malicious,  and  defamatory  libel,  containing 
divers  false,  scandalous,  malicious,  and  defamatory  matters  concern- 
ing the  said  Giovanni  Giacinto  Achilli,  that  is  to  say  : — [Here  fol- 
lows the  libel,  set  out  verbatim  with  the  necessary  innuendoes']. 
Which  said  false,  scandalous,  malicious,  and  defamatory  libels,  the 
said  John  Henry  Newman  did  then  publish  to  the  great  damage, 
scandal,  and  disgrace  of  the  said  Giovanni  Giacinto  Achilli,  in  con- 
tempt of  our  said  Lady  the  Queen,  to  the  evil  and  pernicious  exam- 
ple of  all  others  in  like  case  offending  and  against  the  peace  of  our 
said  Lady  the  Queen,  her  crown  and  dignity.  Whereupon  the  said 
coroner  and  attorney  of  our  said  Lady  the  Queen,  who  for  our  said 
34  lib.  &  slan.  (601) 


530  PRECEDENTS    OF    PLEADINGS 

Lady  the  Queen  in  this  behalf  prosecuteth,  prayeth  the  consideration 
of  the  Court  here  in  the  premises,  and  that  due   process  of  law  may 

by  awarded  against  the  said  John  Henry  Newman  in  this  behalf  to 
make  him  answer  to  our  said  Lady  the  Queen  touching  and  concern- 
ing the  premises  aforesaid." 

See  Crown  Office  Rules,  1880,  Form,  No.  30. 

For  a  precedent  of  an  information  for  a  libel  on  a  body  or  class 
of  persons,. see  JR.  v.  Gathercole,  2  Lewin,  C.  C.  pp.  238 — 253. 


No.  94. 

Pleas  to  the  above  Information.'1' 

"In  the  Queen's  Bench. 

"Michaelmas  Term,  15  Vict.,  a.  d.  1851. 

"  1.  And  the  said  John  Henry  Newman  appears  here  in  Court  by 
Henry  Lewin,  his  attorney,  and  the  said  information  is  read  to  him, 
which  being  by  him  heard  and  understood,  he  complains  to  have 
been  grievously  vexed  and  molested  under  colour  of  the  premises, 
and  the  less  justly  because  he  saith  that  he  is  Not  Guilty  of  the  said 
supposed  offences  in  the  said  information  alleged,  &c. 

"  2.  And  for  a  further  plea,  the  said  John  Henry  Newman  saith 
[*675]  that  before  the  composing  and  publishing  of  the  said  alleged 
libel,  to  wit,  on  the  1st  of  January  1830,  &c.  :  [Here  follow  facts 
showing  the  truth  of  the  matters  charged.]  And  so  the  said  John 
Henry  Newman  says  that  the  said  alleged  libel  consists  of  allega- 
tions true  in  substance  and  in  fact,  and  of  fair  and  reasonable  com- 
ments thereon. 

"  And  the  said  John  Henry  Newman  further  saith,  that  at  the 
time  of  publishing  the  said  alleged  libel,  it  was  for  the  public  benefit 
that  the  matters  therein  contained  should  be  published,  because,  he 
says,  that  great  excitement  prevailed  and  numerous  public  discus- 
sions had  "been  held  in  divers  places  in  England  on  divers  matters 
of  controversy  between  the  churches  of  England  and  Rome,  with 
respect  to  which  it  was  important  the  truth  should  be  known  ;  and 
inasmuch  as  the  said  G.  G.  Achilli  took  a  prominent  part  in  such 
discussions,  and  his  opinion  and  testimony  were  by  many  persons 
appealed  to  and  relied  on  as  of  a  person  of  character  and  respecta- 
bility, with  reference  to  the  matters  in  controversy,  it  was  necessary 
for  the  purpose  of  more  effectually  examining  and  ascertaining  the 
truth,  that  the  matters  in  the  said  alleged  libel  should  be  publicly 
known,  in  order  that  it  might  more  fully  appear  that  the  opinion 
and  testimony  of  the  said  G.  G.  Achilli  were  not  deserving  of  credit 
or  consideration  by  reason  of  his  previous  misconduct  :  [Here  fol- 
low other  facts  showing  that  it  was  for  the  public  benefit  that  the  said 

*  The  pleas  originally  filed  were  demurred  to,  and  amended  ;  the  amended 
pleas  were  again  demurred  to,  as  being  too  general  in  their  statements,  and 
were  then  altered  to  the  above  form. 

(602) 


IN    CRIMINAL    casks.  53  I 

matters  charged  should  be  published .]     And  so  the  said  John 

Henry  Newman  says  he  published  the  said  alleged  libel  as  he  law- 
fully might  for  the  causes  aforesaid,  and  this  the  said  John  Henry 
Newman  is  ready  to  verify.     Wherefore  he  prays  judgment,  &c." 
See  Crown  Office  Rules,  1886,  Form,  No.  81. 


No.  95. 
Replication. 

"Hilary  Term,  16  Vict,,  1852. 

"  The  said  C.  F.  Robinson,  Esq.,  coroner  and  attorney  of  our  said 
Lady  the  Queen,  in  the  Court  of  Queen's  Bench,  who  prosecutes  for 
our  Lady  the  Queen  as  to  the  plea  first  pleaded,  puts  himself  upon 
the  country,  and  as  to  the  plea  secondly  pleaded,  saith  that  the  said 
J.  II.  Newman  of  his  own  wrong  and  without  the  cause  in  his  said 
plea  alleged,  composed,  and  published  the  said  libel  as  in  the  said 
information  alleged,  &c." 

Issue  joined,  Hilary  Term,  16  Vict.,  1852. 

See  Crown  Office  Rules,  1886,  Form,  No.  83". 


[*676]  No.  96. 

Information  ex  officio  for  a  Seditious  Libel. 

M.   v.  John  Home,  clerk   (afterwards  John  Home   Tooke),   Cowp. 
672  ;   11  St.  Tr.  2G4  ;   20  How.  St.  Tr.  651). 

Michaelmas  Term,  17  Geo.  III.  a.d.  1775. 

"  London  to  wit. 

"  Be  it  remembered  that  Edward  Thurlow,  Esq.,  attorney-general 
of  our  present  sovereign  Lord  the  King,  who  for  our  said  present 
sovereign  Lord  the  King  prosecutes  in  this  behalf,  in  his  proper 
person  comes  into  the  Court  of  our  said  present  sovereign  Lord  the 
King  before  the  King  himself,  at  Westminster  in  the  county  of 
Middlesex,  on  Thursday  next  after  fifteen  days  from  the  day  of  St. 
Martin  in  this  same  term,  and  for  our  said  Lord  the  King  giveth 
the  Court  here  to  understand  and  be  informed,  that  John  Home,  late 
of  London,  clerk,  being  a  wicked,  malicious,  seditious,  and  ill-disposed 
person,  and  being  greatly  disaffected  to  our  said  present  sovereign 
Lord  the  King,  and.  to  his  administration  of  the  government  of  this 
kingdom,  and  the  dominions  thereunto  belonging,  and  wickedly, 
maliciously,  and  seditiously  intending,  devising,  and  contriving  to 
stir  up  and  excite  discontents  and  seditions  among  His  Majesty's 
subjects,  and  to  alienate  and  withdraw  the  affection,  fidelity,  and 
allegiance  of  His  said  Majesty's  subjects  from  His  said  Majesty,  and 
to  insinuate  and  cause  it  to  be  believed  that  divers  of  His  Majesty's 

(603) 


532  PRECEDENTS    OF    PLEADINGS 

innocent  and  deserving  subjects  had  been  inhumanly  murdered  by 
His  said  Majesty's  troops  in  the  province,  colony,  or  plantation  of  the 
Massachusetts-Bay,  in  New  England,  in  America,  belonging  to  the 
crown  of  Great  Britain,  and  unlawfully  and  wickedly  to  seduce  and 
encourage  His  said  Majesty's  subjects  in  the  said  province,  colony,  or 
plantation,  to  resist  and  oppose  His  Majesty's  government,  on  the 
8th  day  of  June,  in  the  15th  year  of  the  reign  of  our  present  sove- 
reign Lord  George  the  Third,  &c,  with  force  and  arms  at  London 
aforesaid,  in  the  parish  of  St.  Mary-le-Bow,  in  the  ward  of  Cheap, 
wickedly,  maliciously,  and  seditiously,  did  write  and  publish,  and 
cause  and  procure  to  be  written  and  published,  a  certain  false,  wicked, 
malicious,  scandalous  and  seditious  libel,  of  and  concerning  His  said 
Majesty's  government,  and  the  employment  of  His  troops,  according 
to  the  tenor  and  effect  following  :  'King's  Arms  Tavern  Cornhdl, 
June  *lth,  1775.     At  a  special  meeting  this  dajT  of  several  members  of 
the  Constitutional  Society,  during  an  adjournment,  a  gentleman  pro- 
posed, that  a  subscription  should  be  immediately  entered  into  (by  such 
[*  677]  of  the  members  present  who  might  approve   the  purpose), 
for  raising  the  sum  of  £100 — to  be    applied   to   the  relief   of  the 
widows,  orphans,  and  aged  parents  of  our  beloved  American  fellow 
subjects,  who,   faithful  "to  the  character  of  Englishmen,  preferring 
death  to  slavery,  were,  for  that  reason  only,  inhumanly  murdered  by 
the  King's  (meaning  His  said  Majesty's)  troops,  at  or  near  Lexing- 
ton and  Concoi'd,  in  the  province  of  Massachusetts  (meaning  the  said 
province,  colony,  or  plantation  of  the   Massachusetts-Bay,  in  New 
England,  in  America)  on  the  19th  of  last  April  ;  which  sum  being 
immediately  collected,  it  was  thereupon  resolved,  that  Mr.   Home 
(meaning  himself  the  said  John  Home)  do  pay  to-morrow  into  the 
hands  of  Messieurs  Brownes  and  Collison,  on  the  account  of  Dr. 
Franklin,  the  said  sum  of  £100,  and  that  Dr.  Franklin  be  requested 
to  apply  the  same  to  the  above-mentioned  purpose. — John   Home, 
(meaning  himself  the  said  John  Home),  in   contempt   of  our  said 
Lord  the  King,  in  open  violation  of  the  laws  of  this  kingdom,  to  the 
evil  and  pernicious  example  of  all  others  in  the  like  case  offending, 
and  also  against  the  peace  of  our  said  present  sovereign  Lord  the 
King,  his  crown  and  dignity.     [Then  follow  several  counts  for  the 
several  publications  of  the  same  libel  in  the  various  ?ietcspapers.] 
"  And  the  said  attorney-general  of  our  said  Lord  the  King  for 
our  said  Lord  the  King  further  gives  the  Court  here  to  understand 
and  be  informed  that  the   said  John  Home,  being  such  person  as 
aforesaid,  and  again  unlawfully,  wickedly,  maliciously,  and   sedi- 
tiously intending,  devising  and  contriving  as  aforesaid,  afterwards, 
to  wit,  on  the  14th  day  of  July,   in  the   15th  year  aforesaid,   with 
force  and  arms  at  London  aforesaid,  in  the  parish  and  ward  afore- 
said, wickedly,  maliciously,  and  seditiously  did  write   and  publish, 
and  cause  and  procure  to  be  written  and  published,  a  certain  false, 
wicked,  malicious,  scandalous,  and  seditious  libel,  of  and  concerning 
His  said.  Majesty's  government,  and  the  employment  of  His  troops, 
according  to  the  tenor  and  effect  following  :— '  I  (meaning  himself 
the  said  John  Home)  think  it  proper  to  give  the   unknown  contrib- 
utor this  notice,  that  I  (again  meaning  himself  the  said  John  Home) 

(604) 


IN    CRIMINAL    CASES.  533 

did  yesterday  pay  to  Messrs.  Brownes  and  Collison,  on  account  of 
Dr.  Franklin,  the  sum  of  £50  and  that  I  (again  meaning  himself  the 
said  John  Home)  will  write  to  Dr.  Franklin,  requesting  him  to  ap- 
ply the  same  to  the  relief  of  the  widows,  orphans,  and  aged  parents 
of  our  beloved  American  fellow  subjects,  who,  faithful  to  the  char- 
acter of  Englishmen,  preferring  death  to  slavery,  were  (for  that 
reason  only)  inhumanly  murdered  by  the  King's  (meaning  His  said 
Majesty's)  troops,  at  or  near  Lexington  and  Concord,  in  the  province 
of  Massachusetts  [*  078]  (meaning  the  said  province,  colony,  or  plan- 
tation of  the  Massachusetts-Bay  in  New  England  in  America)  on 
the  19th  of  April  last, — John  Home  (again  meaning  himself  the 
said  John  Home)  in  contempt  of  our  said  Lord  the  King,  in  open 
violation  of  the  laws  of  this  kingdom,  to  the  evil  and  pernicious 
example  of  all  others  in  the  like  case  offending,  and  also  against 
the  peace  of  our  said  present  sovereign  Lord  the  King,  his  crown, 
and  dignity.  [Then  follow  other  counts  for  other  publications  of 
the  same  libel.']  Whereupon  the  said  attorney-general  of  our  said 
Lord  the  King,  who  for  our  said  present  sovereign  Lord  the  King 
prosecutes  in  this  behalf,  prays  the  consideration  of  the  court  here 
in  the  premises,  and  that  due  process  of  law  may  be  awarded 
against  him,  the  said  John  Home,  in  this  behalf,  to  make  him  an- 
swer to  our  said  present  sovereign  Lord  the  King  touching  and  con- 
cerning the  said  premises  aforesaid,  &c. 

E.  Thurlow." 
See  Crown  Office  Rules,  Form,  No  31. 


No.  97. 
Indictment  for  a  Blasphemous  Libel. 


,  to  wit. 

The  jurors  for  our  Lady  the  Queen  upon  their  oath  present  that 
A.  B.,  being  a  wicked  and  evil-disposed  person,  and  disregarding 
the  laws  and  religion  of  the  realm,  and  wickedly  and  profanely 
devising  and  intending  to  bring  the  Holy  Scriptures  and  the 
Christian  religion  into  disbelief  and  contempt  among  the  people  of 

this  kingdom,  on  the day  of ,  a.  r>. ,  unlawfully 

and  wickedly  did  compromise,  print  and  publish,  and  cause  and 
procure  to  be  composed,  printed,  and  published,  a  certain  scandal- 
ous, impious,  blasphemous,  and  profane  libel,  of  and  concerning  the 
Holy  Scriptures  and  the  Christian  religion,  in  one  part  of  which 
said  libel  there  were  and  are  contained,  amongst  other  things,  cer- 
tain scandalous,  impious,  blasphemous,  and  profane  matters  and 
things,  of  and  concerning  the  Holy  Scriptures  and  the  Christian 
religion,  according  to  the  tenor  and  effect  following,  that  is  to  say  : 
[Here  set  out  the  first  blasphemous  passage],  and  in  another  part 
thereof  there  were  and  are  contained,  amongst  other  things,  certain 
other  scandalous,  impious,  blasphemous,  and  profane  matters  and 
things,  of  and  concerning  the  said  Holy  Scriptures  and  the  Christian 

^605) 


5  34  PRECEDENTS    OF    PLEADINGS] 

religion,  according  to  the  tenor  and  effect  following,  that  is  to  say  : 
\  Here  set  out  other  blasphemous  passages]  :  to  the  high  displeasure 
of  Almighty  God,  to  the  great  scandal  and  [*  679]  reproach  of 
the  Christian  religion,  to  the  evil  example  of  all  others  in  the  like  case 
offending,  and  against  the  peace  of  our.  said  Lady  the  Queen,  her 
crown  and  dignity. 

See  another  precedent  in  R.  v.  Ramsey  and  Ibote,  1  C.  &  E.  pp. 
126—131. 


No.  98. 
Indictment  for  publishing  and  selling  an  Obscene  Picture. 
— ,  to  wit. 


The  jurors  for  our  Lady  the  Queen  upon  their  oath  present  that 
A.  B.,  being  a  wicked  and  evil-disposed  person,  and  unlawfully 
devising,  contriving  and  intending  to  debauch  and  corrupt  the 
morals  of  the  young  and  of  divers  other  liege  subjects  of  our  said 
Lady  the  Queen,  on  the day  of a.d. ,  in  a  cer- 
tain open  and  public  shop  of  him,  the  said  A.  B.,  situate  and  being 

at  number High  Street,  in  the  parish  of ,  in  the  town 

of ,  in  the  county  aforesaid,  Unlawfully,  wickedly,  designedly, 

and  maliciously  did  publish  and  sell,  and  cause  and  procure  to  be 
published  and  sold,   to  one  C.  D.,  a  certain  lewd,  scandalous  and 

obscene  picture  [print,  photograph,  or  engraving],  intituled , 

and  representing [Here  give  such  a  detailed  description  of 

the  picture  as  will  manifestly  shoio  its  indecency],  to  the  manifest 
corruption  of  the  morals  of  the  young,  and  of  other  liege  subjects 
of  our  said  Lady  the  Queen,  in  contempt  of  our  said  Lady  the 
Queen  and  her  laws,  to  the  evil  example  of  all  others  in  the  like  case 
offending,  and  against  the  peace  of  our  said  Lady  the  Queen,  her 
crown  and  dignity. 

No.  99. 
Indictment  for  Seditious    Words. 


to  wit. 


The  jurors  for  our  Lady  the  Queen  upon  their  oath  present  that 
A.  B.,  being  a  wicked,  malicious,  seditious,  and  evil-disposed  per- 
son, and  wickedly,  maliciously,  and  seditiously  contriving  and 
intending  the  peace  of  our  Lady  the  Queen  and  of  this  realm  to  dis- 
quiet and  disturb,  and  the  liege  subjects  of  our  said  Lady  the 
Queen  to  incite  [*  680]  and  move  to  hatred  and  dislike  of  the  per- 
son of  our  said  Lady  the  Queen  and  of  the  goverment  established 
by  law  within  this  realm,  and  to  incite,  move,  and  persuade  great 
numbers  of  the  liege  subjects  of  our  said  Lady  the  Queen,  to  insur- 
rection, riots,  tumults,  and  breaches  of  the  peace,  and  to  prevent  by 
force  and  arms  the  execution   of  the   laws  of  this  realm  and  the 

preservation  of  the  public  peace,  on  the day  of  ,  a.  d. 

(606) 


IN    CRIMINAL    CASES.  535 

,  in  the  presence  and  hearing  of  divers,  to  wit, of  the 

liege  subjects  of  our  said  Lady  the  Queen  then  assembled  together, 
in  a  certain  speech  and  discourse  by  him  the  said  A.  B.  then 
addressed  to  the  said  liege  subjects  so  then  assembled  together,  as 
aforesaid,  unlawfully,  wickedly,  maliciously,  and  seditiously  did  pub- 
lish, utter,  pronounce,  and  declare  with  a  loud  voice  of  and  concern- 
ing the  government  established  by  law  within  this  realm,  and  con- 
cerning our  said  Lady  the  Queen,  and  the  crown  of  this  realm,  and 
of  and  concerning  the  liege  subjects  of  our  said  Lady  the  Queen, 
committing  and  being  engaged  in  divers  insurrections,  riots,  and 
breaches  of  the  public  peace,  amongst  other  words  and  matter,  the 
false,  wicked,  seditious  and  inflammatory  words  and  matter  following, 
that  is  to  say  : — [Here  set  out  the  seditious  words  verbatim]  ;  in 
contempt  of  our  said  Lady  the  Queen,  in  open  violation  of  the  laws 
of  this  realm,  to  the  evil  and  pernicious  example  of  all  others  in  the 
like  case  offending,  and  against  the  peace  of  our  said  Lady  the 
Queen,  her  crown  and  dignity. 


No.  100. 

Indictment  for  Defamatory  Woi'ds  spoken  to  a  Magistrate  in  the 
Execution  of  his  Duty. 

Middlesex,  to  wit. 

The  jurors  for  our  Lady  the  Queen  upon  their  oath  present,  that 

heretofore,  to  wit,  on  the day  of in  the  year  of  our 

Lord, one  A.  B.  wras  brought  before  C.  D.,  Esquire,  then  and 

yet  being  one  of  the  justices  of  our  said  Lady  the  Queen,  assigned  to 
keep  the  peace  of  our  said  Lady  the  Queen  in  and  for  the  county  of 
Middlesex,  and  also  to  hear  and  determine  divers  felonies,  trespasses, 
and  other  misdeeds  committed  in  the  said  county  ;  and  the  said  A.  B. 
was  then  charged  before  the  said  C.  D.,  upon  the  oath  of  one  E.  F., 
that  he,  the  said  A.  B.,  had  then  lately  before  feloniously  taken,  stolen, 
and  taken  away  divers  goods  and  chattels  of  the  said  E.  F.  And  the 
[*  681]  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  A.  B.,  being  a  scandalous  and  ill-disposed 
person,  and  wickedly  and  maliciously  intending  and  contriving  to 
scandalize  and  vilify  the  said  C.  D.  as  such  justice  as  aforesaid, 
and  to  bring  the  administration  of  justice  in  this  kingdom  into 
contempt,  afterwards,  and  whilst  the  said  C.  D„  as  such  justice 
as  aforesaid,  was  examining  and  taking  the  dispositions  of  divers 
witnesses  against  him  the  said  A.  B.,  in  that  behalf,  to  wit,  on  the 
day  and  year  aforesaid,  wickedly  and  maliciously,  in  the  presence 
and  hearing  of  divers  good  and  liege  subjects  of  our  said  Lady  the 
Queen,  did  publish,  utter,  pronounce,  declare,  and  say  with  a  loud 
voice  to  the  said  C.  D.,  and  whilst  he  the  said  C.  D.  was  so  acting 
as  such  justice  as  aforesaid,  the  false,  wicked,  malicious,  and  sedi- 
tious words  and  matter  following,  that  is  to  say  : —  [Here  set  out  the 
seditious  words  verbatim]  ;  to  the  great  scandal  and  reproach  of  the 
administration  of  justice  an  this  kingdom,  to  the  great  6candal  and 

(607j 


530  PRECEDENTS    OF    PLEADINGS 

damage  of  the  said  C.  D.,  in  contempt  of  our  said  Lady  the  Queen 
and  her  laws,  to  the  evil  example  of  all  others  in  the  like  case 
offending,  and  against  the  peace  of  our  said  Lady  the  Queen,  her 
crown  and  dignity. 

No.  101. 
Indictment  for  a  Libel  on  a  Private  Individual  at  Common  Law. 
,  to  wit. 


The  jurors  for  our  Lady  the  Queen,  upon  their  oath,  present  that 
[before  and  at  the  time  of  the  committing  of  the  offence  hereinafter 
mentioned,  one  C.  D.  was,  and  still  is,  a  solicitor  of  the  Supreme 
Court,  and  exercised  and  carried  on  the  profession  or  business  of 

such  solicitor  at ,  in    the  county  of ;  and  that]  A.  B. 

being  a  person  of  an  evil  and  wicked  mind,  and  wickedly,  mali- 
ciously, and  unlawfully  contriving  and  intending  to  injure,  vilify, 
and  prejudice  the  said  C.  D.,  and  to  bring  him  into  public  contempt, 
scandal,  infamy,  and  disgrace,  and  to  deprive  him  of  his  good  name, 
fame,  credit,  and  reputation  [in   his  said  profession   and   business, 

and  otherwise  to  injure  and  aggrieve  him  therein],  on  the 

day  of ,  in  the  year  of  our  Lord ,  wickedly,  maliciously, 

and  unlawfully  did  write  and  publish,  and  cause  and  procure  to  be 
written  and  published,  [in  the  form  of  a  letter  directed  to  one  E.  F.,] 
of  and  concerning  the  said  C.  D.  [and  of  and  concerning  him  in  his  said 
profession  [*  682]  and  business,  and  of  and  concerning  his  conduct 
and  behaviour  therein],  the  false,  scandalous,  malicious,  and  defam- 
atory words  following,  that  is  to  say  : — [Here  set  out  the  libel  ver- 
batim, with  all  necessary  intniendoes],  to  the  great  damage,  scandal, 
and  disgrace  of  the  said  C.  D.  [in  his  said  profession  and  business], 
to  the  evil  example  of  all  others  in  the  like  case  offending,  and 
against  the  peace  of  our  said  Lady  the  Queen,  her  crown  and 
dignity. 


No.   102. 
Indictment  for  a  Libel  on  a  Lead  Man. 

The  jurors  for  our  Lady  the  Queen,  upon  their  oath,  present  that 
before  the  committing  of  the  offence  hereinafter  mentioned,  to  wit, 
on  the  29th  day  of  May  1883,  John  Batchelor,  of  Penarth,  in  the 
county  of  Glamorgan,  died,  and  that  Thomas  Henry  Ensor,  being  a 
person  of  an  evil  and  wicked  mind,  wickedly,  maliciously  and  un- 
lawfully designing  and  intending  to  injure  and  defame  the  charac- 
ter, reputation  and  memory  of  the  said  John  Batchelor,  and  to  vilify 
and  to  throw  scandal  upon  his  family  and  posterity,  and  to  bring 
them  into  public  contempt  and  infamy,  and  to  stir  up  the  hatred 
and  ill-will  of  the  subjects  of  our  Lady  the  Queen  against  them, 
and  to  deprive  them  of  their  good  name,  fame  and  reputation,  and 
to  provoke  them  to  a  breach  of  the  peace^  on  the  23rd  day  of  July 

(608) 


IN    CRIMINAL    CASKS.  537 

1886,  wilfully,  maliciously  and  unlawfully  did  write  and  publish, 
and  cause  and  procure  to  be  printed  and  published  *  of  and  con- 
cerning the  said  John  Batchelor,  his  family  and  posterity,  the  false, 
scandalous,  malicious  and  defamatory  words  following-,  that  is  to 
say: — "  Suggested  [*  683]  epitaph  for  the  Iiatchelor  statue"  [I/ere 
copy  the  libel  verbatim],  to  the  scandal  and  reproach  of  the  name 
and  memory  of  the  said  John  Batchelor,  to  the  great  damage  and 
disgrace  of  his  family  and  posterity,  to  the  evil  example  of  all 
others  in  the  like  case  offending  and  against  the  peace  of  our  said 
Lady  the  Queen,  her  crown  and  dignity. 

*  In  the  case  of  R.  v.  Ensor,  3  Times  L.  11.  366,  four  of  the  counts  ran 
thus: — "A  false,  scandalous,  and  defamatory  libel,  having  a  tendency  to 
cause  a  breach  of  the  peace,  and  which  on  the  27th  day  of  July  1886,  did 
cause  a  certain  breach  of  the  peace,  to  wit,  an  assault  by  one  Cyril  Batchelor 
and  one  Llewellyn  Batchelor  upon  one  Henry  Lascelles  Carr  at  Cardiff,  in  the 
county  of  Glamorgan,  in  the  form  of  a  letter  or  newspaper  paragraph  delivered 
and  read  by  the  said  T.  H.  Ensor  to  John  Henry  Taylor,  James  Harris,  Henry 
Lascelles  Carr,  and  divers  other  persons  at  Cardiff  aforesaid,  according  to  the 
tenor  and  effect  following,  that  is  to  say."  These  words  were  inserted  because 
in  that  case  an  assault  had  actually  followed  the  libel  ;  but  they  are  not 
essential  to  an  indictment  for  such  an  offence.  Where  there  has  been  no 
assault  the  defendant  is  still  criminally  liable  if  there  be  other  evidence  of  a 
criminal  intent. 

No.  103. 

Indictment  under  Sect.  4  of  Lord  Campbell's  Act. 

[Commence  as  in  p>recedent  No.  101/  then  set  out  the  libel  with 
all  necessary  innuendoes,  and  conclude  as  folloios]: — he,  the  said 
A.  B.,  then  well  knowing  the  said  defamatory  libel  to  be  false  ;  to 
the  great  damage,  scandal,  and  disgrace  of  the  said  C.  D.,  to  the 
evil  example  of  all  others  in  the  like  case  offending,  against  the 
form  of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  of  our  Lady  the  Queen,  her  crown  and  dignity. 


No.  104. 

Indictment  under  Sect.  5  of  lord   Campbell's  Act. 

[This  will  precisely  follow  the  preceding  form,  merely  omitting 
the  words : — "  he,  the  said  A.  B.,  then  well  knowing  the  said  defam- 
atory libel  to  be  false."] 


No.   105. 

Demurrer  to  an  Indictment  or  Information. 

And  the  said  A.  B.,  in  his  own  proper  person,  cometh  into  court 
here,  and,  having  heard  the  said  indictment  [or  information]  read, 

(609) 


538  PRECEDENTS    OF    PLEADINGS 

saith,  that  the  said  indictment  [or  information]  and  the  matters 
therein  contained,  in  manner  and  form  as  the  same  above  arc  stated 
and  set  forth,  are  not  sufficient  in  law,  and  that  he  the  said  A.  B.  is 
not  bound  by  the  law  of  the  land  to  answer  the  same  ;  and  this  he 
is  ready  to  verify  ;  wherefore,  for  want  of  a  sufficient  indictment 
[or  [*684]  information]  in  this  belief,  the  said  A.  B.  prays  judg- 
ment, and  that  by  the  court  he  may  be  dismissed  and  discharged 
from  the  said  premises  in  the  said  indictment  [or  information] 
specified. 

See  Crown  Office  Rules,  188G,  Form,  No. -80. 


No.  106. 
Joinder  in  Demurrer. 


And  J.  N.,  who  prosecutes  for  our  said  Lady  the  Queen  in  this 
behalf,  saith,  that  the  said  indictment  [or  information]  and  the 
matters  therein  contained,  in  manner  and  form  as  the  same  are 
above  stated  and  set  forth,  are  sufficient  in  law  to  compel  the  said 
A.  B.  to  answer  the  same  ;  and  the  said  J.  N.,  who  prosecutes  as 
aforesaid,  is  ready  to  verify  and  prove  the  same,  as  the  court  here 
shall  direct  and  award  :  wherefore,  inasmuch  as  the  said  A.  B.  hath 
not  answered  to  the  said  indictment  [or  information],  nor  hitherto 
in  any  manner  denied  the  same,  the  said  J.  N.,  for  our  said  Lady 
the  Queen,  prays  judgment,  and  that  the  said  A.  B.  may  be  con- 
victed of  the  premises  in  the  said  indictment  [or  information] 
specified. 


No.  107. 

Pleas  to  an  Indictment. 

R.  v.  Niblett. 


"At  the  assizes  and  general  delivery  of  the  Queen's  gaol  for  the 
county  of  Berkshire,  ho'lden  in  and  for  the  said  county  on  the  fourth 
day  of  May  in  the  year  of  our  Lord  1886,  cometh  into  court  the 
said  E.  N,  in  her  own  proper  person,  and  having  heard  the  said  in- 
dictment read,  saith  she  is  not  guilty  of  the  said  premises  in  the  said 
indictment  above  specified  and  charged  upon  her,  and  of  this  she 
the  said  E.  N.  puts  herself  upon  the  country,  &c. 

"  And  for  a  further  plea  in  this  behalf  the  said  E.  N. 
says  that  our  Lady  the  Queen  ought  not  further  to  prosecute 
the  said  indictment  against  her,  because  she  says  it  is  true  that 
the  Reverend  A.  B.  is  the  man  who  slept  at  her  house  on 
the  fourth  day  of  June  last  with  the  said  X.  Y.  [and  so  on, 
stating  facts  showing  the  truth  of  every  matter  charged  in  the 
alleged  libel];  and   so   the   said   E.  N.  says  that  the  said  alleged 

(610) 


IN    CRIMINAL    CASES. 


539 


libel  is  true  in  substance  and  in  fact.  And  tlie  said  E.  N.  further 
[*685]  saitli  that  before  and  at  the  time  of  publishing  the  said 
alleged  libel,  it  was  for  the  public  benefit  that  the  matters  contained 

therein  should  be  published  to  the  extent  that  they  were  published 
by  her,  because  the  said  Reverend  A.  B.  then  was  and  still  is  a 
clergyman  of  the  Church  of  England,  in   charge   of  the  parish  of 

,  in  the  said  county,  and  the  said  X.  Y.  had  been   a  servant 

of  the  said  Reverend  A.  B.  in  the  said  parish,  and  because  it  was 
notorious  in  the  said  parish  that  the  said  X.  Y.  was  a  woman  of 
immoral  character,  and  because  scandal  and  evil  report  existed  in 
the  said  parish  to  the  effect  that  she  had  had  improper  connection 
with  the  said   Reverend  A.  B.  whilst   she   was  in  his  service,  and 

also  that  he  had  since  cohabited  with  her  at in  the  county  of 

Middlesex,  where  she  passed  under  the  name  of  Mrs.  B.,  and  other 
places  and  under  other  names  to  such  parishioners  unknown,  and 
because  these  reports  created  great  scandal  to  the  church,  and 
greatly  disquieted  the  parishioners  of  the  said  parish,  and  because  it 
was  of  the  greatest  consequence  to  such  parishioners  to  know  whether 
these  reports  were  true  or  false,  and  to  obtain  evidence  which 
might  be  laid  before  the  bishop  of  the  diocese  in  which  such  parish 
was  situated,  in  order  that  proceedings  might  be  taken  to  inquire 
into  the  truth  or  falsity  of  such  reports  :  wherefore  the  said  E.  N., 
beinw  aware  of  the  premises  and  being  herself  a  member  of  the  said 
Church  of  England,  and  believing  it  to  be  her  duty  to  acquaint  the 
said  parishioners  with  the  facts  above  mentioned  as  to  the  conduct 
of  the  said  Reverend  A.  B.,  such  facts  being  within  her  own  knowl- 
edge, published  the  said  alleged  libel  to  the  churchwarden  of  the 
said  parish,  and  to  the  parish  clerk,  and  to  six  of  the  parishioners 
of  the  said  parish,  all  of  whom  were  churchmen  and  interested 
therein,  in  order  that  the  said  alleged  libel,  or  a  copy  thereof  should 
be  forwarded  to  the  said  bishop,  and  a  copy  thereof  was  forwarded 
to  the  said  bishop,  who  thereupon  at  once  began  to  inquire  into  the 
truth  or  falsity  of  the  said  reports  ;  and  the  said  E.  N.  in  no  way 
published  the  said  alleged  libel  save  to  the  said  bishop,  churchwar- 
den, parish  clerk,  and  parishioners  aforesaid.  Wherefore  the  said 
E.  N.  says  it  was  for  the  public  benefit  that  the  matters  charged  in 
the  said  alleged  libel,  and  all  and  every  of  them,  should  be  so  pub- 
lished by  her  as  aforesaid.  And  this  she  is  ready  to  verify,  where- 
fore she  prays  judgment,  and  that  by  the  court  here  she  may  be 
dismissed  and  discharged  from  the  said  premises  in  the  said  indict- 
ment above  specified." 

See  another  Precedent,  2  Cox,  C.  C,  App.  xxix  ;  and  Crown 
Office  Rules,  1886,  Form,  No.  81. 

[*686]  For  a  plea  in  abatement  to  an  indictment  for  libel,  see  R. 
v.  Gavan  Duffy,  1  Cox,  C.  C.  282,  and  li.  v.  J.  Mitchell,  11  L.  T. 
(Old  S.)  112. 

For  a  plea  of  abatement  on  the  ground  that  other  proceedings  lor 
the  same  libel  were  still  pending,  see  R.  v.  J.  Mitchell,  3  Cox,  C. 
C.  94,  106  ;  with  demurer  thereto  and  joinder  in  demurrer  (lb.  96), 
and  replication  (lb.  101). 

For  a  plea  to  the  jurisdiction  of  the  court  in  a  criminal  case  of 

(.611) 


540  PRECEDENTS    OF    PLEADINGS 

libel,   and  a  demurrer  thereto,  see  R.  v.  Hon.  Robert  Johnson,  6 
East,  583  ;  2  Smith,  591  ;  29  How.  St.  Tr.  103. 


No.  108. 
Replication  to  the  above  Pleas. 


And  thereupon  J.  N.  [the  clerk  of  arraigns,  <fbc.~\  who  prosecutes 
for  our  said  Lady  the  Queen  in  this  behalf,  as  to  the  plea  of  the 
said  A.  B.  by  him  firstly  above  pleaded,  and  whereof  the  said  A. 
B.  hath  put  himself  upon  the  country,  doth  the  like,  &c.  And  as 
to  the  plea  of  the  said  A.  B.  by  bim  secondly  above  pleaded,  the 
said  J.  N.,  who  prosecutes  as  aforesaid,  saj^s  that  our  said  Lady  the 
Queen  ought  not  by  reason  of  anything  in  the  said  second  plea 
alleged  to  be  barred  or  precluded  from  prosecuting  the  said  indict- 
ment against  the  said  A.  B.,  because  he  says  that  he  denies  the  said 
several  matters  in  the  said  second  plea  alleged,  and  saith  that  the 
same  are  not,  nor  are  nor  is  any  or  either  of  them,  true  ;  but  that 
the  said  A.  B.  of  his  own  wrong,  and  without  the  cause  and  matter 
of  defence  in  his  said  second  plea  alleged  and  set  forth,  committed 
the  offence  and  published  the  said  libel  in  manner  and  form  as  in 
the  said  indictment  is  mentioned.  And  this  he,  the  said  J.  N., 
prays  may  be  inquired  of  by  the  country,  &c.  And  the  said  A.  B. 
doth  the  like. 

See  Crown  Office  Rules,  1886,  Form,  No.  83. 


No.   109. 
Demurrer  to  a  Plea. 


And  J.  N.,  who  prosecutes  for  our  said  Lady  the  Queen  in  this 
behalf,  as  to  the  said  plea  of  the  said  A.  B.  by  him  above  pleaded, 
saith  that  the  same,  and  the  matters  therein  contained,  in  manner  and 
[*687]  form  as  the  same  are  above  pleaded  and  set  forth,  are  not 
sufficient  in  law  to  bar  or  preclude  our  said  Lady  the  Queen  from 
prosecuting  the  said  indictment  against  him  the  said  A.  B.,  and 
that  our  said  Lady  the  Queen  is  not  bound  by  the  law  of  the  land 
to  answer  the  same  ;  and  this  he,  the  said  J.  N.,  who  prosecutes  as 
aforesaid,  is  ready  to  verify  :  wherefore,  for  want  of  a  sufficient 
plea  in  this  behalf,  he  the  said  J.  N.  for  our  said  Lady  the  Queen, 
prays  judgment,  and  that  the  said  A.  B.  may  be  convicted  of  the 
premises  in  the  said  indictment  specified. 

See  Crown  Office  Rules,  1886,  Form,  No.  84. 
(612) 


IN    CRIMINAL    CASKS.  541 

No.    110. 

Joinder  in  Demurrer. 

And  the  said  A.  B.  saith,  that  his  said  pica,  by  him  above  pleaded, 
and  the  matters  therein  contained,  in  manner  and  form  as  the  same 
are  above  pleaded  and  set  forth,  are  sufficient  in  law  to  bar  and 
preclude  our  said  Lady  the  Queen  from  prosecuting  the  said  indict- 
ment against  him  the  said  A.  B.,  and  the  said  A.  B.  is  ready  to 
verify  and  prove  the  same,  as  the  said  court  here  shall  direct  and 
award  :  wherefore,  inasmuch  as  the  said  J.  N,  for  our  said  Lady 
the  Queen,  hath  not  answered  the  said  plea,  nor  hitherto  in  any 
manner  denied  the  same,  the  said  A.  B.  prays  judgment,  and  that  by 
the  court  here  he  may  be  dismissed  and  discharged  from  the  said 
premises  in  the  said  indictment  specified. 

See  Crown  Office  Rules,  1886,  Form,  No.  85. 


(613) 


SUMMING    UP    IN 


[*c8si  APPENDIX  B. 


LORD  COLERIDGE'S  SUMMING  UP  TO  THE  JURY 

IN   THE   CASE   OP 

REG.  v.  RAMSEY  AND  FOOTE, 

48  L.  T.  733  ;  15  Cox,  C.  C.  231  ;  1  C.  &  E.  126. 
(As  revised  by  the  Lord  Chief  Justice.) 


Gentlemen  oe.  the  jury. 

The  two  defendants  are  indicted  for  the  publication  of  blas- 
phemous libels  ;  and  the  two  questions  which  arise  for  your  consider- 
ation, are  : — First,  Are  these  publications  in  themselves  blasphemous 
libels?  Secondly,  If  they  are  so,  is  the  publication  of  them  traced 
home  to  the  defendants  so  that  you  can  find  them  guilty '? 

I  will  begin  with  the  last  question,  though  it  is  reversing  the 
logical  order,  because  it  is  the  shorter  and  more  simple  of  the  two. 
Both  questions  are  entirely  for  you.  When  you  have  heard  what  I 
have  to  say  to  you  as  to  the  state  of  the  law  as  I  understand  it,  it 
will  then  be  for  you  to  pronounce  a  general  verdict  of  Guilty  or  Not 
guilty. 

Now  for  the  purpose  of  this  second  question,  which  I  deal  with 
first,  I  will  assume  for  the  moment  that  these  are  blasphemous  libels, 
but  though  I  assume  it  now,  I  will  discuss  it  with  you  afterwards. 
Assuming  them  then  to  be  blasphemous  libels,  is  the  publication  of 
them  traced  home  to  the  defendants?  As  you  are  not  the  same  jury 
who  tried  Mr.  Bradlaugh,  it  is  necessary  for  me  to  repeat  to  you  the 
direction  on  this  subject  which  I  gave  a  few  days  ago  to  the  jury 
which  tried  him.  As  to  the  matter  of  publication,  the  law  has  been 
altered  in  most  important  respects  by  a  statute  passed  early  in  the 
[*689]  reign  of  the  present  Queen— 6  &  7  Vict.  c.  96.  It  used  to 
be  the  law  that  the  proprietor  of  a  newspaper  was  criminally,  not 
merely  civilly,  but  criminally  responsible  for  a  libel  inserted  in  his 
paper,  and  that  a  bookseller  or  publisher  was  criminally  responsible 
for  a  libel  in  any  book  which  was  sold  or  published  under  his 
authority,  even  though  the  newspaper  proprietor,  or  the  bookseller 
or  publisher  did  not  know  of  or  authorise  the  insertion  of  any  libel, 
and  did  not  even  know  of  its  existence.     But  this  in  the  criminal 


R.    V.    RAMSEY    AND    FOOTE.  543 

law  was  an  anomaly  and  a  grievance  which  the  statute  I  have 
referred  to  was,  in  its  seventh  section,  intended  to  remedy.  That 
section  came  to  be  considered  in  the  case  of  Reg.  v.  Holbrooke  in 
.which  a  gross  libel  on  the  Town  Clerk  of  Portsmouth  had  been  pub- 
lished in  a  Portsmouth  newspaper.  The  case  was  twice  tried  a1 
Winchester,  first  before  Lord  Justice  Lindley,  and  secondly  before 
Mr.  Justice  Grove.  On  each  occasion  the  ruling  of  the  judge  who 
tried  the  case  was  questioned  in  the  Queen's  Peneh  in  the  time  of 
my  predecessor  in  this  seat  ;  on  each  occasion  by  the  same  three 
judges,  Lord  Chief  Justice  Cockburn,  and  Mellor,  and  Lush,  JJ.  ; 
on  each  occasion  there  was  the  same  difference  of  opinion,  the  Lord 
Chief  Justice,  and  Lush,  J.,  holding  one  way  and  Mellor,  J.,  the 
other.  But,  notwithstanding  this  difference  of  opinion,  the  case  is  a 
binding  authority  upon  me,  and  I  lay  down  the  law  to  you  in  the 
terse  and  clear  language  of  Mr.  Justice  Lush.  "The  effect  of  the 
statute,"  says  he  (L.  R.  4  Q.  B.  50),  "  read  by  the  light  of  previous 
decisions,  and  read  so  as  to  make  it  remedial,  must  be,  that  an 
authority  from  the  proprietor  of  a  newspaper  to  the  editor  or  pub- 
lisher to  publish  what  is  libellous,  is  no  longer  to  be,  as  it  formerly 
was,  a  presumption  of  law,  but  a  question  of  fact.  Before  the  act 
the  only  question  of  fact  was,  whether  the  defendant  authorized  the 
publication  of  the  paper,  now  it  is  whether  he  authorized  the  publica- 
tion of  the  libel Criminal  intention  is  not  to  be  presumed,  but 

it  is  to  be  proved,  and  in  the  absence  of  evidence  to  the  contrary,  a 
person  who  employs  another  to  do  a  lawful  act,  i.  e.,  to  publish,  is 
to  be  taken  to  authorize  him  to  do  it  in  a  lawful  and  not  in  an  un- 
lawful manner."  Such  is  now  the  law  laid  down  in  admirable  lan- 
guage by  great  authority  ;  and  it  is  for  you  to  say  whether  accord- 
ing to  the  law  as  so  laid  down  these  defendants  (either  or  both  of 
them)  did  or  did  not  authorize  the  publication  of  these  libels. 

On  the  trial  of  Mr.  Bradlaugh  this  question  of  fact  was  the  ques- 
tion in  the  case  ;  he  grounded  his  defence  upon  the  contention,  that 
whatever  was  the  character  of  the  published  matter,  the  publication 
was  not  by  his  authority.  That  was  his  defence  ;  and  upon  that 
[*G90]  defence,  so  far  as  I  may  presume  to  assign  reasons  for  the 
general  verdict  of  a  jury,  he  was  acquitted.  In  the  trial  before  us 
the  process  has  been  reversed.  The  fact  of  publication  by  the 
defendants  has  hardly  been  contested.  The  evidence  is  all  one  way  ; 
it  is  all  uncontradicted,  and  it  is  overwhelming.  It  is  proved  that 
the  defendant  Ramsey  sold  the  papers  Avhich  contained  the  libels. 
It  is  proved  that  the  articles  charged  as  libellous  were  inserted  bv 
the  express  direction  of  the  defendant  Foote.  There  is  nothing  to 
qualify  this  proof  ;  the  defendants  in  fact  do  not  deny  their  liabil- 
ity ;  and  though  the  case  is  for  you,  I  do  not  know  that  I  need 
refrain  from  saying  that,  if  upon  the  evidence  you  have  heard,  you 
think  both  the  defendants  liable  for  the  publication  of  these  alleged 
libels,  I  shall  entirely  agree  with  you. 

That,  however,  is,  comparatively  speaking,  the  least  matter  you 
have  to  decide  ;  for  the  proof  is  clear,  and  it  is  not  disputed.  The 
great  point  still  remains,  Are  these  articles  within  the  meaning  of 
the  law  blasphemous  libels  ?     Now  that,  as  you  have  been  truly 

(615) 


544  SUMMING    UP    IN 

told,  is  a  matter  absolutely  for  you.  On  you  is  the  responsibility, 
after  looking  at  them  and  reading  them,  of  saying  whether  they 
are  or  are  not  blasphemous  libels.  My  duty  is  to  explain  to  you  as 
clearly  as  I  can  what  is  the  law  upon  the  subject.  My  duty,  further, 
is  not  to  answer  the  speeches  of  the  defendants  (that  is  no  part  of' 
the  duty  of  a  judge),  but  to  point  out  to  you  what  in  their  argu- 
ments is  in  my  judgment  well-founded,  and  what  is  not  ;  and  then, 
when  you  have  listened  to  me,  the  question  is  entirely  for  you.  I 
am  sure  from  my  experience  of  juries  that,  in  a  criminal  case 
especially,  they  will  obey  the  law  as  declared  by  the  judge  ;  they 
will  take  the  law  from  the  judge,  whether  they  like  it  or  do  not  like 
it,  and  apply  it  honestly  to  the"  facts  before  them. 

Gentlemen,  I  have  said  before,  and  I  take  the  freedom  to  repeat, 
that  it  is  far  more  important  the  law  should  be  administered  with 
absolute  integrity,  than  that  in  this  case  or  in  that  the  law  should  be 
a  good  law  or  a  bad  one.  The  moment  juries  or  judges  go  beyond 
their  functions,  and  take  upon  themselves  to  lay  down  the  law  or  find 
the  facts,  not  according  to  the  law  as  it  is,  but  according  to  the  law  as 
they  think  it  ought  to  be,  then  the  certainty  of  the  law  is  at  an  end  ; 
there  is  nothing  to  rely  upon  ;  we  are  left  to  the  infinite  variety  and 
uncertainty  of  human  opinion  ;  to  caprice  which  may  at  any  moment 
influence  the  best  of  us  ;  to  feelings  and  prejudices,  perhaps  excellent 
in  themselves,  but  which  may  distort  or  disturb  our  judgment,  and 
distract  our  minds  from  the  single  simple  operation  of  ascertaining 
whether  the  facts  proved  bring  the  case  within  the  law  as  we  are 
bound  to  take  it.  Forgive  me  if  I  seem  to  press  too  earnestly  upon  a 
[*G9l]  special  jury  of  Middlesex  these  obvious  commonplaces.  If  at 
my  age,  with  so  much  to  bring  about  a  temper  of  indifference,  with 
the  training  which  a  whole  life  spent  in  judicial  pursuits  ought  to 
have  brought  with  it  ;  if  I  feel,  as  I  confess  I  do,  that  it  is  hard  in 
a  case  like  this  to  be  perfectly  just  and  absolutely  impartial,  it  may 
perhaps  be  that  to  some  of  you  at  least  my  earnest  warning  may 
not  be  absolutely  useless  ;  at  any  rate  I  am  sure  you  will  pardon  me 
for  having  presumed  to  utter  it.    • 

Gentlemen,  you  have  heard  with  truth  that  these  things  are, 
according  to  the  old  law,  if  the  dicta  of  old  judges,  dicta  often  not 
necessary  for  the  decisions,  are  to  be  taken  as  of  absolute  and  un- 
qualified authority,— that  these  things,  I  say,  are  undoubtedly  blas- 
phemous libels,  simply  and  without  more,  because  they  question  the 
truth  of  Christianity.  But  I  repeat  what  I  said  on  the  former  trial, 
that,  for  reasons  which  I  will  presently  explain,  these  dicta  cannot 
be  taken  to  be  a  true  statement  of  the  law,  as  the  law  is  now.  It  is 
no  longer  true,  in  the  sense  in  which  it  was  true  when  these  dicta 
were  uttered,  that  Christianity  is  part  of  the  law  of  the  land.  In  the 
times  when  these  dicta  were  uttered,  Jews,  Roman  Catholics,  Non- 
conformists of  all  sorts  were  under  heavy  disabilities  for  religion, 
were  regarded  as  hardly  having  civil  rights.  Everything  almost, 
short  of  the  punishment  of  death,  was  enacted  against  them.  The 
epithet  "  ferocious,"  which  has  been  applied  to  the  statute^  of  Will- 
iam III.,  to  which  so  much  reference  has  been  made,  is  hardly 
stronger  than  that  statute  deserves.     Jews,  it  is  true,  were  excluded 

(616) 


E.    V.    RAMSEY    AM>    FOOTJE.  545 

from  Parliament  in  a  sense  by  accident,  for  the  oath  which  ex- 
cluded them  was  not  pointed  at  them  ;  but  no  one  can  doubt  that  at 
that  time  if  it  had  occurred  to  anyone  that  they  were  not  excluded, 
a  law  would  have  been  forthwith  passed  to  exclude  them.  Histori- 
cally and  as  a  matter  of  fact,  such  was  the  state  of  things  when 
these  dicta  were  pronounced.  But  now,  so  far  as  I  know  the  law, 
a  Jew  might  be  Lord  Chancellor  ;  most  certainly  he  might  be  Master 
of  the  Rolls.  The  great  and  illustrious  lawyer  whose  loss  the  whole 
profession  is  deploring,  and  in  whom  his  friends  knew  that  they  lost 
a  warm  friend  and  a  loyal  colleague  ;  he,  but  for  the  accident  of 
taking  his  office  before  the  Judicature  Act  came  into  operation, 
might  have  had  to  go  circuit,  might  have  sat  in  a  criminal  court  to 
try  such  a  case  as  this,  might  have  been  called  upon,  if  the  law 
really  be  that  "  Christianity  is  part  of  the  law  of  the  land"  in  the 
sense  contended  for,  to  lay  it  down  as  law  to  a  jury,  amongst  whom 
might  have  been  Jews, — that  it  was  an  offence  against  the  law,  as 
blasphemy,  to  deny  that  Jesus  Christ  was  the  Messiah,  a  thing  which 
hi'  himself  did  deny,  which  Parlia  [*692]  ment  had  allowed  him  to 
deny,  and  which  it  is  just  as  much  part  of  the  law  that  any  one  may 
deny,  as  it  is  your  right  and  mine,  if  we  believe  it,  to  assert.  There- 
fore, to  base  the  prosecution  of  a  bare  denial  of  the  truth  of  Chris- 
tianity, simpliciter  and  per  se  on  the  ground  that  Christianity  is 
part  of  the  law  of  the  land,  in  the  sense  in  which  it  was  said  to  be 
so  by  Lord  Hale,  and  Lord  Raymond,  and  Lord  Tenterden,  is  in 
my  judgment  a  mistake.  It  is  to  forget  that  law  grows  ;  and  that 
though  the  principles  of  law  remain  unchanged,  yet  (and  it  is  one 
of  the  advantages  of  the  common  law)  their  application  is  to  be 
changed  with  the  changing  circumstances  of  the  times.  Some  per- 
sons may  call  this  retrogression,  I  call  it  progression,  of  human 
opinion.  Therefore,  to  take  up  a  book  or  a  paper,  to  discover 
merely  that  in  it  the  truth  of  Christianity  is  denied  without  more, 
and  thereupon  to  say  that  now  a  man  may  be  indicted  upon  such 
denial  as  for  a  blasphemous  libel  is,  as  1  venture  to  think,  abso- 
lutely untrue.  I,  for  one,  positively  refuse  to  lay  that  down  as  law, 
unless  it  is  authoritatively  so  declared  by  some  tribunal  I  am  bound 
by.  Historically,  I  cannot  think  I  should  be  justified  in  so  doing, 
for  Parliament,  which  is  supreme  and  binds  us  all,  has  enacted 
statutes  which  make  that  old  view  of  the  laAv  no  longer  applicable. 
^Nor  is  it  any  disrespect  whatever  to  the  great  men  of  elder  days  to 
hold  that  what  they  said  in  one  state  of  things  is  not  applicable 
under  another. 

Gentlemen,  when  I  last  addressed  a  jury  on  this  subject,  I  put  a 
case  to  them  which  I  thought  was  a  reductio  ad  absurdum  of  the 
argument.  I  said  that  if  the  law  was  as  contended  for,  it  would  be 
enough  to  say  that  anything  was  part  of  the  law  of  the  land,  and 
that  thereupon  there  could  be  no  discussion  and  no  reform  ;  for  that 
to  attack  any  part  of  the  law,  however  gravely  and  respectfully, 
would  be,  if  not  blasphemous  yet  seditious.  Monarchy  is  part  of 
the  law  of  the  land  ;  primogeniture  is  part  of  the  law  of  the  land  ; 
the  laAvs  of  marriage  are  part  of  the  law  of  the  land,  and  so  forth. 
But  if  the  doctrine  contended  for  be   true,  to  republish  Algernon 

35  lib.  &  slan.  (617) 


546  SUMMING   UP   IN 

Sydney,  or  Harrington,  or  Locke,  or  Milton,  would  expose  a  man  to 
a  prosecution  for  a  breach  of  the  law  of  libel.  But  it  shows  how 
dangerous  it  is  for  some  men  at  least  to  presume  upon  their  knowl- 
edge. What  I  put  as  a  reductio  ad  absurdum  I  have  since  discov- 
ered  actually  occurred,  and  was  decided  to  be  law  by  a  judge  early 
in  the  last  century.  There  is  a  case  reported  by  Lord  Chief  Baron 
Gilbert  (7i.  v.  Bedford),  from  which  it  appears  that  a  man  was 
actually  convicted  of  a  seditious  libel  for  discussing  gravely  and 
civilly,  and  as  the  report  of  the  case  in  Bacon's  Abridgment,  tit. 
Libel,  says  "  without  any  reflection  whatever  upon  any  part  of  the 
then  existing  Govern  [*693]  ment,"  the  respective  advantages  of  an  he- 
reditary or  elective  monarchy.  I  need  hardly  say  that  if  such  a  case 
arose  now  no  judge  would  follow  that  authority,  no  jury  would  con- 
vict, the  whole  proceeding  would  be  denounced,  and  rightly  de- 
nounced, as  altogether  monstrous. 

It  is  clear,  therefore,  to  ray  mind  that  the  mere  denial  of  the  truth 
of  the  Christian  religion  is  not  enough  alone  to  constitute  the  offence 
of  blasphemy.  What  then  is  enough  ?  No  doubt  we  must  not  be 
guilty  of  taking  the  law  into  our  own  hands,  and  converting  it  from 
what  it  really  is  to  what  we  think  it  ought  to  be.  I  must  lay  down 
the  law  to  you  as  I  understand  it,  and  as  I  read  it  in  books  of  author- 
ity. Now,  Mr  Foote,  in  his  very  able  address  to  you,  spoke  with 
something  like  contempt  of  the  person  he  called  "  the  late  Mr. 
Starkie."  He  did  not  know  Mr.  Starkie  ;  he  did  not  know  how  able 
and  how  good  a  man  he  was.  Mr.  Starkie  died  when  I  was  young  ; 
but  I  knew  him,  and  everyone  who  knew  him  knew  that  he  was  a 
man  not  only  of  remarkable  power  of  mind,  but  of  opinions  liberal 
in  the  best  sense  ;  and  if  ever  the  task  of  law-making  could  be  safely 
left  in  the  hands  of  any  man  perhaps  it  might  have  been  in  his. 
But,  what  is  more  material  to  the  present  purpose,  the  statement  of 
the  law  by  Mr.  Starkie  has  again  and  again  been  assented  to  by 
judges  as  a  correct  statement  of  the  existing  law.  I  will  read  it  to 
you,  there  tore,  as  expressing  what  I  lay  down  to  you  as  law  in  words 
far  better  than  any  at  my  command. 

"  There  are  no  questions  of  more  intense  and  awful  interest  than 
those  which  concern  the  relations  between  the  Creator  and  the  beings 
of  his  creation  ;  and  though,  as  a  matter  of  discretion  and  prudence, 
it  might  be  better  to  leave  the  discussion  of  such  matters  to  those 
who,  from  their  education  and  habits,  are  most  likely  to  form  correct 
conclusions,  yet  it  cannot  be  doubted  that  any  man  has  a  right,  not 
merely  to  judge  for  himself  on  such  subjects,  but  also,  legally 
speaking,  to  publish  his  opinions  for  the  benefit  of  others.  "When 
learned  and  acute  men  enter  upon  these  discussions  with  such  laud- 
able motives,  their  very  controversies,  even  where  one  of  the  antago- 
nists must  necessarily  be  mistaken,  so  far  from  producing  mischief, 
must  in  general  tend' to  the  advancement  of  truth,  and  the  establish- 
ment of  religion  on  the  firmest  and  most  stable  foundations.  The 
very  absurdity  and  folly  of  an  ignorant  man,  who  professes  to  teach 
and  enlighten  the  rest  of  mankind,  are  usually  so  gross  as  to  render 
his  errors  harmless  ;  but  be  this  as  it  may,  the  law  interferes  not 
witli  his  blunders  so  long  as  they  are  honest  ones,  justly  considering 

(<i!8) 


It.     V.     KA.MSKY     AND     FOOTE.  547 

that  society  is  more  than  compensated  for  the  partial  and  limited 
[*694]  mischief  which  may  arise  from  the  mistaken  endeavours  of 
honest  ignorance,  by  the  splendid  advantages  which  result  to  re- 
ligion and  to  truth  from  the  exertion  of  free  and  unfettered  minds. 
It  is  the  mischievous  abuse  of  this  state  of  intellectual  liberty  which 
calls  for  penal  censure.  The  law  visits  not  the  honest,  errors,  hut, 
the  malice  of  mankind.  A  wilful  intention  to  pervert,  insult,  and 
mislead  others,  by  means  of  licentious  and  contumelious  abuse, 
applied  to  sacred 'subjects,  or  by  wilful  misrepresentations  or  artful 
sophistry,  calculated  to  mislead  the  ignorant  and  unwary,  is  the 
criterion  and  test  of  guilt. 

"A  malicious  and  mischievous  intention,  or  what  is  equivalent  to 
such  an  intention,  in  law  as  well  as  in  morals,  a  state  of  apathy  and 
indifference  to  the  interests  of  society,  is  the  broad  boundary  between 
right  and  wrong." 

"Now  that  I  believe  to  be  a  correct  statement  of  the  law.  Whether 
it  ought  to  be  or  not  is  not  for  me  to  say.  I  tell  you  the  law  as  I 
understand  it,  leaving  you  to  apply  it  to  the  facts  of  the  particular 
case  before  you.  There  was  much  force,  no  doubt,  in  the  way  in 
which  Mr.  Foote  dealt  with  the  passage  in  his  address  to  you.  The 
vagueness,  the  uncertainty  which  he  insisted  upon  are  possibly,  how- 
ever, inherent  in  the  subject,  and  there  is  perhaps  more  to  be  said  in 
favour  of  Mr.  Starkie's  view  than  may  appear  without  reflection. 
There  is  a  passage  in  his  book  taken,  I  believe,  from  Michaelis,  in 
which  it  is  pointed  out  with  great  truth  that  in  one  view  the  law 
against  blasphemous  libel  may  be  for  the  benefit  of  the  libeller  him- 
self, who,  if  there  were  no  law,  might  find  its  absence  ill  exchanged 
for  the  presence  of  popular  vengeance  and  indignation. 

"  Now  to  the  man  who  from  his  heart  believes  his  religion,  and 
regards  it  as  the  way  to  eternal  bliss,  and  as  the  comfort  both  of 
life  and  death,  and  who  of  course  wishes  to  educate  his  family  in 
the  knowledge  and  belief  of  it,  nothing  can  be  more  offensive  than  to 
hear  another  speaking  against  it,  and  employing,  not  arguments 
(although  even  these  he  might  let  alone,  because  every  man  has  a 
right  even  to  err,  without  our  forcibly  interfering  to  rid  him  of  his 
errors),  but  insolent  and  contemptuous  language,  and  blaspheming 
its  gods,  its  prophets,  saints,  and  sacred  things.  Were  the  religion 
in  question  only  tolerated,  still  the  State  is  bound  to  protect  every 
person  who  believes  it  from  such  outrages,  or  it  cannot  blame  him 
if  he  has  not  the  patience  to  bear  them.  But  if  it  be  the  established 
national  religion,  and  of  course  the  person  not  believing  it  be  only 
tolerated  by  the  State,  and  though  he  enjoys  its  protection  just  as 
if  he  were  in  a  strange  house,  such  an  outrage  is  excessively  gross  ; 
and  unless  we  [*695]  conceive  the  people  so  tame  as  to  put  up  with 
any  affront,  and  of  course  likely  to  play  but  a  very  despicable  part 
on"  the  stage  of  the  world,  the  State  has  only  to  choose  between  the 
two  alternatives,  of  either  punishing  the  blasphemer  himself,  or  else 
leaving  him  to  the  fury  of  the  people.  The  former  is  the  milder 
plan,  and  therefore  to  be  preferred,  because  the  people  are  apt  to 
gratify  their  vengeance  without  sufficient  inquiry,  and  of  course  it 
may  light  upon  the  innocent. 

(G19) 


548  SUMMING    UP    IN 

"  Nor  is  this  by  any  means  the  treatment  which  I  only  claim  for 
the  religion  which  I  hold  to  be  the  true  one  ;  I  am  also  bound  to 
admit  it  when  I  happen  to  be  among  a  people  from  whose  religion  I 
dissent ;  were  I  in  a  Catholic  country,  to  deride  their  saints  or  insult 
their  religion  by  my  behaviour,  were  it  only  by  rudely  and  design- 
edly putting  on  my  hat  when  decency  would  have  suggested  the 
taking  it  off  ;  or  were  I  in  Turkey,  to  blaspheme  Mahomet,  or  in  a 
heathen  city  its  gods,  nothing  would  be  more  natural  than  for  the 
people;  instead  of  suffering  it,  to  avenge  the  insult  in  their  usual  way, 
that  is,  tumultuously,  passionately,  and  immoderately  ;  or  else  the 
State  would,  in  order  to  secure  me  from  the  effects  of  their  fury,  be 
under  the  necessity  of  taking  my  punishment  upon  itself,  and  if  it 
does  so,  it  does  a  favour  both  to  me  and  other  dissenters  from  the 
established  religion,  because  it  secures  us  from  still  greater  evils." 

It  is  not  so  clear,  therefore,  that  some  sort  of  protection  for.  the 
constituted  religion  of  the  country  is  not  a  good  thing,  even  for 
those  who  differ  from  it  ;  for  if  there  were  no  such  protection,  the 
consequences  pointed  out  by  Michaelis  might  too  probably  ensue. 
It  does  not  follow  that  because  the  objects  of  popular  dislike  differ 
in  different  ages  ; — it  does  not  follow  (I  wish  it  did)  that  the  popu- 
lace of  our  age  are  much  wiser  than  the  populace  of  earlier  times. 
It  is  not  so  very  long  ago  in  our  history  since  the  populace  of  Bir- 
mingham wrecked  the  house  and  burnt  the  library  of  Dr.  Priestley, 
a  true  philosopher,  and  excellent  man.  It  was  not  the  State  which 
did  that,  it  was  the  populace.  And  it  is  therefore  not  so  clear  to 
my  mind  that  some  sort  of  blasphemy  laws  reasonably  enforced  may 
not  be  an  advantage,  even  to  those  who  differ  from  the  popular 
religion  of  a  country,  and  who  desire  to  oppose  and  to  deny  it. 
Further,  therefore,  it  must  not  be  taken  as  so  absolutely-  certain 
that  all  these  laws  against  blasphemy  are  in  principle  tyrannical. 
Whether,  however,  they  are  so  or  not,  if  they  exist  we  must  admin- 
ister them,  and  the  principle  upon  which  we  are  to  administer  them 
is  to  be  found  in  the  passage  I  have  read  from  Starkie. 

But  I  think  I  ought  to  go  further,  and  to  say  that  such  study  as  I 
|*  696]  have  been  able  to  make  of  the  cases  has  not  satisfied  me  that 
the  law  ever  was  laid  down  differently  from  the  law  as  laid  down  by 
Mr.  Starkie.  I  do  not  pretend  to  have  the  time  or  learning  to  discuss 
with  you  exhaustively  all  the  cases  on  the  subject.  I  have  taken  a 
few  of  the  leading  ones,  speaking  roughly  a  century  apart  from  each 
other,  and  I  find  the  law,  as  I  understand  it  and  have  laid  it  down  to 
you,  to  be  laid  down  practically  in  the  same  way  in  all  these  eases. 
It  is  perhaps  worth  observing  that  this  law  of  blasphemous  libel  first 
appears  in  our  books — at  least  that  cases  relating  to  it  are  hist 
reported — shortly  after  the  curtailment  or  abolition  of  the  jurisdic- 
tion of  the  Ecclesiastical  Courts  in  matters  temporal.  Speaking 
broadly,  before  the  time  of  Charles  IT.  these  things  would  have  been 
dealt  with  as  heresy  ;  and  the  libellers,  so-called,  of  more  recent 
days  would  have  suffered  as  heretics  in  earlier.  But  I  pass  to  the 
eases  which  are  reported.  The  first  of  them  is  a  case  decided  by 
that  great  lawyer  Lord  Hale,  of  whom  Mr.  Foote  spoke  with  some 
respect.     He  was  indeed  a  man  of  great  intellectual  power,  of  abso- 

(020) 


R.    V.    RAMSEY    AM)    FOOTE.  549 

lute  integrity,  whose  life  was  that  of  a  Christian  saint.  If  Mr. 
Foote  had  read  the  full  report  of  the  trial  of  the  witches  before 
Lord  Hale,  lie  would  have  seen  that  Lord  Hale  was  there  doing 
what  many  a  judge  has  had  to  do,  was  administering  a  law  he  did 
not  like,  and  so  gave  to  the  accused  persons  every  advantage  which 
his  great  skill  in  the  law  fairly  allowed  him  to  give  ;  but  neither  the 
prisoners  nor  the  jury  would  take  the  advantage  which  he  offered 
them.  The  case  is  curious,  and  he  who  reads  it  I  think  will  say  that: 
it  is  a  very  terse  and  misleading  analysis  of  it,  that  Lord  Hale  hung 
witches  because  of  the  language  of  the  Bible  ;  though  no  doubt  the 
passages  in  Exodus  and  Deuteronomy  were  referred  to.  Anyone 
who  takes  the  pains  to  read  the  ease  through  will  see  that,  judging 
him  even  by  the  standard  of  the  present  day,  there  is  much  more  to 
be  said  for  Lord  Hale's  conduct  on  that  occasion  than  the  run  of 
mankind  believe.  But  in  the  ease  of  Taylor  (which  I  cite  from 
Ventris,  who  was  himself  a  judge,  and  who  gives  the  best  report) 
Lord  Hale  had  the  following  words  before  him  ;  and  you  must 
always  take  a  case  and  an  opinion  with  reference  to  the  subject- 
matter  as  to  which  the  case  was  decided  or  the  opinion  given.  The 
words,  as  Ventris  says,  were  "  blasphemous  expressions  horrible  to 
hear,"  viz.,  "  that  Jesus  Christ  was  a  bastard  and  a  whoremaster, 
that  religion  was  a  cheat,  and  that  he  feared  neither  God,  the  devil, 
or  man."  Those  were  the  words  on  which  Lord  Hale  had  to  decide 
in  that  case,  and  what  he  says  is  this  :  "Such  kind  of  wicked  blas- 
phemous words  are  not  only  an  offence  to  God  and  religion,  but  a 
crime  against  the  laws,  State,  and  Govern  [*  690]  ment,  and  there- 
fore punishable  in  this  court,"  That  is  what  Lord  Hale  held,  in  one 
of  the  earliest  cases  on  the  subject,  You  may  find  expressions  which 
seem  to  go  further  in  the  reasons  which  he  gives,  but  before  these 
cases  are  so  glibly  cited,  as  they  sometimes  are,  you  should  look  and 
see  what  isthe  subject-matter  of  the  decision.  Lord  Hale  held 
"such  kind  of  wicked  blasphemous  words"  to  be  a  blasphemous 
libel,  and  if  they  came  before  me  I  too  should  hold  them,  without 
hesitation,  to  be  a  blasphemous  libel,  though  I  am  no  more  disposed 
to  hang  witches  than  Lord  Hale  really  was. 

The  next  case,  on  which  much  stress  has  been  laid,  and  which  is 
usually  cited  from  Strange,  though  it  is  more  fully  and  better 
reported  in  Fitzgibbons,  is  the  case  of  Wbolston,  who  was  convicted 
of  blasphemous  discourses  upon  the  miracles  of  our  Lord,  and  the 
court,  as  reported  by  Fitzgibbons,  lay  very  great  stress  on  what  they 
call  "general  and  indecent  attacks ,"  and  carefully  state  that  they 
did  not  intend  to  include  disputes  between  men  on  controverted 
matters.  That  is  the  law  as  laid  down  by  Lord  Raymond,  a  great 
lawyer,  no  doubt,  and  a  man  of  high  character,  though  of  much 
which  Lord  Raymond  says  and  of  many  of  the  expressions  in  his 
judgment  I  think  that  time  and  change  have  destroyed  the   authority. 

There  is  then  the  case  which  is  commonly  cited  as  bringing  the 
lawr  down  almost  to  our  own  time — the  case  of  R.  v.  Wadditoffton, 
tried  before  Lord  Tenterden,  and  reported  in  1  B.  &  C.  The  words 
of  the  libel  were  that  '"Jesus  Christ  was  an  impostor,  a  murderer, 
and  a  fanatic."      The  Lord  Chief  Justice  laid  it  down  that  it  was  a 

(621) 


550  SUMMING    UP    IN 

libel,  and  a  juryman  asked  the  Lord  Chief  Justice  whether  a  work 
which  denied  the  divinity  of  Our  Saviour  was  a  libel.  Now  mark 
the  answer  given  by  Lord  Tenterden,  one  of  the  most  cautious  and 
justly  respected  of  men  :  "  lie  answered  that  a  work  speaking  of 
Jesus  Christ  in  the  language  referred  to  was  a  libel."  That  ruling 
was  questioned  in  the  King's  Bench  before  Lord  Tenterden  himself, 
and  Bayley,  Holroyd,  and  Best,  JJ.  The  three  judges  first  named 
were  as  great  lawyers  as  ever  adorned  our  bench  ;  and  though  Best, 
J.,  was  a  much  abler  judge  than  it  is  now-a-days  the  fashion  to  call 
him,  still  no  one  but  would  consider  him  the  inferior  of  the  other 
three.  But  when  the  case  was  moved  in  the  King's  Bench,  Lord 
Tenterden  said,  "  I  told  the  jury  that  any  publication  in  which  Our 
Saviour  was  spoken  of  in  the  language  used  in  this  publication  was 
a  libel,  and  I  have  no  doubt  whatever  that  it  is  so.  I  have  no  doubt 
it  is  a  libel  to  publish  the  words  that  Our  Saviour  teas  an  impostor, 
a  murderer,  and  a  fanatic.''''  Mr.  Justice  Bayley  says,  "It  appeals 
to  me  that  the  direction  of  the  Lord  Chief  Justice  was  perfectly 
right.  There  cannot  be  any  doubt  [*  698]  that  a  work  which  does 
not  merely  deny  the  Godhead  of  Jesus  Christ,  but  which  states  him 
to  have  been  an  impostor,  and  a  murderer,  is  at  common  law  a 
blasphemous  libel."  Mr.  Justice  Holroyd  says,  "  I  have  no  doubt 
whatever  that  any  publication  in  which  Jesus  Christ  is  spoken  of  in 
the  language  used  in  this  book  is  a  blasphemous  libel,  and  that  there- 
fore the  direction  was  right  in  point  of  law."  Mr.  Justice  Best  gives 
a  longer  judgment,  in  more  rhetorical  language,  but  to  the  same 
effect,  and  he  concludes,  "It  is  not  necessary  for  me  to  say  whether 
it  be  libellous  to  argue  from  the  Scriptures  against  the  divinity  of 
Christ.  That  is  not  what  the  defendant  professes  to  do.  The  legis- 
lature has  never  altered  the  law,  nor  can  it  ever  do  so  while  the 
Christian  religion  is  considered  to  be  the  basis  of  that  law."  Now 
this  is  the  case  which  is  often  cited,  I  must  think  by  those  who  have 
not  read  it,  as  an  authority  that  any  attack  upon  Christian  doctrine, 
however  respectful  and  decent  in  language,  is  by  law  a  blasphemous 
libel.  It  is  authority,  as  I  think,  for  nothing  of  the  kind.  It  binds 
me  here  no  doubt,  and  I  shall  direct  you  according  to  what  I  con- 
ceive is  its  meaning. 

Thei'e  is  another  case,  the  last  with  which  I  shall  trouble  you,  not 
indeed  exactly  in  point,  but  which  is  sometimes  cited  in  support  of 
the  proposition  that  to  attack  Christianity  is  to  expose  yourself  to 
an  indictment  for  libel.  It  is  the  case  of  Cowan  v.  Milbourn, 
decided  in  1867,  and  reported  in  L.  R.  2  Exch.  230.  It  was  an 
action  in  which  the  owner  of  some  rooms  justified  a  breach  of  his 
contract  to  let  them,  on  the  ground  that  they  were  to  be  used  for 
lectures  directed  against  the  character  of  Christ  and  his  teaching, 
and  the  defendant's  justification  was  upheld  by  the  court.  The  late 
Lord  Chief  Baron  undoubtedly  goes  the  full  length  of  the  doctrine 
contended  for,  and  from  his  reasons,  on  the  grounds  I  have  already 
stated,  I  respectfully  dissent.  But  Lord  Bratnwell  puts  his  concur- 
rence in  the  judgment  on  a  totally  different  ground.  lie  bases  it 
on  the  fact  that  the  statute  of  William  III.  is  still  unrepealed  ;  that 
these  lectures  were  to  be  in  contravention  not  of  the  common  law — 

(622) 


R.    V.    RAMSEY    ANIt    FOOTE.  551 

on  that  he  is  silent — but  of  t his  statute  ;  and  he  is  careful  moreover 
to  point  out  the  distinction  between  a  thing,  such  as  prostitution  for 
example,  being  "unlawful  in  the  sense  that  the  law  will  not  aid  it, 
which  it  may  be,  and  yet  that  the  law  will  not  punish  it.'',  So  that, 
if  I  understand  him,  his  authority  cannot  he  invoked  for  the 
proposition  that  the  proposed  lectures  were  necessarily  blasphemous 
libels  or  the  subjects  of  indictment. 

I  think  therefore  that  anyone  who  calmly  and  carefully  considers 
the  cases  will  very  much  doubt  whether  the  old  law  is  really  open  to 
[*699]  the  attacks  which  have  been  made  upon  it.  I  doubt  ex- 
tremely whether  if  you  carefully  read  through — not  merely  look  at 
— the  cases  and  master  the  facts  upon  which  the  decisions  were  pro- 
nounced, I  doubt  if  they  will  be  found  to  be  so  harsh  and  illiberal 
as  it  has  been  the  fashion  in  modern  times  to  describe  them. 

But  whether  this  is  so  or  not,  Parliament  at  least  has  altered  the 
law  on  these  subjects  ;  it  is  no  longer  the  law  that  none  but  profes- 
sors of  Christianity  can  take  part  or  have  rights  in  the  State  ;  others 
have  now  just  as  much  right  in  civil  matters  as  any  member  of  the 
•Church  of  England  has.  The  condition  of  things  is  no  longer  what 
it  was  when  these  great  judges  pronounced  the  judgments  which  I 
think  have  been  misunderstood,  and  strained  to  a  meaning  they  do 
not  warrant. 

It  is  a  comfort  to  think  that  things  have  been  altered.  I  observe 
that  in  the  case  of  The  Attorney/-  General  v.  Fearson,  decided  by 
Lord  Eldon  in  1817  and  reported  in  Merivale,  he  expressed  a  doubt 
whether  the  provisions  of  the  9  &  10  Will.  III.,  as  to  persons  deny- 
ing the  Trinity,  were  or  were  not  repealed  by  a  later  statute  of  Geo. 
III.  Some  old  things,  and  amongst  them  this  statute,  are  shocking 
enough,  and  I  do  not  defend  them  ;  but  it  must  be  remembered 
what  was  the  state  of  the  country  when  that  statute  passed — who 
was  the  king,  what  was  the  succession,  what  were  the  factions 
which  divided  the  country,  what  were  the  feelings  which  naturally 
agitated  Parliament.  In  these  regards  the  statute  is  not  perhaps 
defensible,  but  at  least  it  is  explicable.  At  all  events,  no  man  would 
dream  of  enacting  such  a  statute  now,  and  I  trust  that  Lord  Eldon's 
doubts  will  never  be  solved  by  a  court  pronouncing  them  to  be  well 
founded. 

Such  are  the  rules,  as  I  tell  you,  by  which  you  are  to  judge  of 
these  libels.  But  further,  you  have  heard  a  great  deal,  powerfully 
put  by  Mr.  Foote,  about  the  inexpediency  of  these  laws  in  any  view 
of  them,  and  as  to  the  way  in  which  they  are  worked.  To  observe 
on  this  is  the  least  pleasant  part  of  my  unpleasant  duty,  and  I  wish 
I  could  avoid  it.  It  might  perhaps  be  enough  to  say  that  these  are 
things  with  which  you  and  I  have  nothing  to  do.  We  have  to 
administer  the  law  as  we  find  it,  and  if  we  don't  like  it  we  should 
try  to  get  it  altered.  In  a  free  country,  after  full  discussion  and 
agitation,  a  change  is  always  effected  if  it  approves  itself  to  the 
general  sense  of  the  community.  Mr.  Foote  has  told  you  that  this 
movement  against  him  and  his  friends  is  to  hi'  regarded  as  persecu- 
tion ;  and  it  is  true,  as  he  has  said,  that  persecution,  unless  thorough- 
going, seldom  succeeds.     Irritation,  annoyance,  punishment    which 

(623) 


552  SUMMING    l/P    IN 

Stops  short  of  extermination,  xwy  seldom  alter  men's  religious  con- 
victions. Entirely  without  one  [*700]  fragment  of  historical  exag- 
geration, I  may  say  that  the  penal  laws  which  fifty  or  sixty  years 
ago  were  enforced  in  Ireland  were  unparalleled  in  the  history  of  the 
world.  They  existed  150  years  ;  they  produced  upon  the  religious 
convictions  of  the  Irish  people  absolutely  no  effect  whatever.  The 
Irish  people  could  not  be  exterminated.  Everything  possible  by 
law  short  of  actual  extermination  and  personal  violence  was  done, 
and  done  without  the  smallest  effect.  No  doubt  therefore  persecu- 
tion, unless  it  is  far  more  thorough-going  than  anyone  in  England 
and  in  this  age  would  stand,  is,  speaking  generally,  of  no  avail. 

It  is  also  true,  that  persecution  is  a  very  easy  form  of  virtue.  A 
difficult  form  of  virtue  is  to  try  in  your  own  life  to  obey  what  you 
believe  to  be  God's  will.  It  is  not  easy  to  do,  and  if  you  do  it,  you 
make  but  little  noise  in  the  world.  But  it  is  easy  to  turn  on  some 
one  who  differs  from  you  in  opinion,  and  in  the  guise  of  zeal  for 
God's  honour,  to  attack  a  man  whose  life,  perhaps  may  be  much 
more  pleasing  to  God  than  is  your  own.  When  it  is  done  by  men 
full  of  profession  and  pretension,  who  choose  that  particular  form 
of  zeal  for  God  which  consists  in  putting  the  criminal  law  in  force 
against  some  one  else,  many  quiet  people  come  to  sympathize  not 
with  the  prosecutor  but  with  the  defendant.  That  will  be  so  as 
human  nature  goes,  and  all  the  more  if  the  prosecutors  should  by 
chance  be  men  who  enjoy  the  wit  of  Voltaire,  who  are  not  repelled 
by  the  sneer  of  Gibbon,  and  who  rather  relish  the  irony  of  Hume. 
It  is  still  worse  if  the  prosecutor  acts  not  from  the  strange  but  often 
genuine  feeling  that  God  wants  his  help  and  that  he  can  give  it  by 
a  prosecution,  but  from  partizan  or  political  motives.  Nothing  can 
be  more  foreign  from  one's  notions  of  what  is  high-minded,  noble, 
,or  religious  ;  and  one  must  visit  a  man  who  wOuld  so  act,  not  for 
God's  honour,  but  using  God's  honour  for  his  own  purposes,  with 
the  most  disdainful  disapprobation  that  the  human  mind  can  form. 

However,  the  question  here  is  not  with  the  motives,  of  which  I 
know  nothing,  nor  with  the  characters,  of  which  I  know  if  possible 
less,  of  those  who  instituted  these  proceedings,  but  with  the  pro- 
ceedings themselves,  and  whether  they  are  legal.  The  way  in  which 
Mr.  Foote  defends  himself  is  able,  and  well  worthy  of  your  atten- 
tion ;  and  you  must  say,  after  a  few  words  from  me,  what  you  think 
of  it. 

Mr.  Foote's  case,  as  I  understand  it,  is  this  (he  will  excuse  me  if  I 
do  not  state  it  accurately)  :  "I  am  not  going  to  maintain,"  says  he, 
"that  this  is  all  in  the  best  taste  ;  some  of  it  may  be  coarse  ;  some  of 
it  to  men  of  education  may  give  offence.  It  is  intended  to  be  an 
[*701]  attack  on  Christianity  ;  it  is  intended  distinctly  to  be  an 
attack  on  what  I  have  seen  attacked  in  the  publications  of  cultivated 
agnosticism.  It  is  meant  to  point  out  that  in  the  books  which  your 
professing  Christians  call  sacred  are  to  be  found  records  of  detest- 
able crimes,  of  horrible  cruelties,  of  the  lives  of  sensual,  selfish,  cruel 
men,  all  of  which  are  said  to  have  been  pleasing  to  Almighty  God. 
I  do  mean  to  attack  your  representation  of  Almighty  God.  I  say 
your  books  are  not  true  ;  I  say  your  religion  is  what  Tacitus  called 

(624) 


K.    V.    RAMSEY    ANi>     FOOTS. 

it — a  detestable  superstition.  I  mean  this,  and  if  I  have  said  h  in 
coarse  language,  that  is  because  I  have  doI  sufficienl  culture  or 
education  to  cull  my  words  carefully.  But  I  will  bring  before  you 
a  number  of  hooks  sold  on  every  bookstall  of  Mr.  Smith,  written  by 
persons  admitted  to  the  very  highest  society  ill  the  land,  ill  which 
not  only  are  the  same  things  to  he  found  in  point  of  matter,  hut  I 
will  read  you  passages  in  which  there  is  very  little  difference  in 
manner — passages,  for  example,  from  John  Stuart  Mill,  from  Grote, 
from  Shelley"'  (I  mention  the  dead  that  I  may  not  wound  the 
feelings  of  the  living).  "  No  one  ever  dreamed  of  attacking  Shelley." 
(He  is  wrong  in  fact,  for  Shelley's  publisher  was  prosecuted,  and 
Shelley  himself  was  deprived  by  Lord  Eldon  of  the  custody  of  his 
children.)  "1  will  show  you  things  written  by  these  men  quite  as 
strong  and  quite  as  coarse  as  anything  to  he  found  in  these  publi- 
cations of  mine  ;  and  it  is  plain  the  law  cannot  be  as  suggested, 
because  it  can  never  be  true  that  a  poor  man  cannot  do  what,  a  rich  man 
may  ;  it  cannot  be  true  that  you  may  blaspheme  if  you  blaspheme 
in  civil  language." 

Such  I  understand,  put  into  my  own  words,  to  be  Mr.  Foote's 
contention.  On  that  I  have  two  things  to  say  :  one  in  Mr.  Foote's 
favour,  and  one  against  him.  He  wished  to  have  it  impressed  upon 
you  that  he  is  not,  and  never  has  been  a  licentious  writer  in  the  sense 
in  which  Mr.  Starkie  uses  the  word  licentious.  He  has  not,  he  says, 
pandered  to  the  sensual  passions  of  mankind.  You  will  have  the 
documents  before  you,  and  you  will  judge  for  yourselves.  For 
myself  I  should  say  that  in  this  matter  he  is  right.  It  is  a  thing  in 
his  favour,  and  he  is  entitled  to  have  it  said. 

But  upon  the  other  point,  if  the  law  as  I  have  laid  it  down  to  you 
is  correct — and  I  believe  it  has  always  been  so — if  the  decencies  of 
controversy  are  observed,  even  the  fundamentals  of  religion  may  be 
attacked  without  a  person  being  guilty  of  blasphemous  libel.  There 
are  many  great  and  grave  writers  who  have  attacked  the  foundations 
of  Christianity.  Mr.  Mill  undoubtedly  did  so  ;  some  great  writers 
now  alive  have  done  so  too  ;  but  no  one  can  read  their  writings 
[*702]  without  seeing  a  difference  between  them  and  the  incrimi- 
nated publications,  which  I  am  obliged  to  say  is  a  difference  not  of 
degree  but  of  kind.  There  is  a  grave,  an  earnest,  reverent,  I  am 
almost  tempted  to  say  religious,  tone  in  the  very  attacks  on 
Christianity  itself,  which  shows  that  what  is  aimed  at  is  not  insult 
to  the  opinions  of  the  majority  of  Christians,  but  a  real,  quiet,  honest 
pursuit  of  truth.  If  the  truth  at  which  these  writers  have  arrived 
is  not  the  truth  we  have  been  taught,  and  which,  if  we  had  not  been 
taught  it,  we  might  have  discovered,  yet  because  these  conclusions 
differ  from  ours,  they  are  not  to  be  exposed  to  a  criminal  indict- 
ment. With  regard  to  many  of  these  persons  therefore  I  should  say 
they  are  within  the  protection  of  the  law  as  I  understand  it. 

With  regard  to  some  of  the  others,  passages  from  whose  writings 
Mr.  Foote  read — I  heard  them  yesterday  for  the  first  tinn — I  do  not 
at,  all  question  that  Mr.  Foote  read  them  correctly.  1  confess,  as  1 
heard  them,  I  had,  and  have,  a  difficulty  in  distinguishing  them 
from  the  alleged  libels.     They  do  appear  to  me  to  be  open  to  the 

*  (62.V) 


55-1-  sum.mi.no   UP  in 

same  charge,  on  the  same  grounds,  as  Mr,  Foote's  writings.  He  says 
many  of  these  things  are  written  in  expensive  books,  published  by 
publishers  of  known  eminence  ;  that  they  are  to  be  found  in  the 
drawing-rooms,  studies,  libraries,  of  men  of  high  position.     It  may 

be  so.  If  it  be,  I  will  make  no  distinction  between  Mr.  Foote  and 
anyone  else  ;  if  there  are  men,  however  eminent,  who  use  such  lan- 
guage as  Mr.  Foote,  and  if  ever  I  have  to  try  them,  troublesome  and 
disagreeable  as  it  is,  if  they  come  before  me,  they  shall,  so  far  as  my 
powers  go,  have  neither  more  nor  less  then  the  justice  I  am  trying 
to  do  to  Mr.  Foote.  If  they  offend  against  the  blasphemy  laws,  they 
shall  find  that  so  long  as  the  laws  exist,  whatever  I  may  think  about 
their  wisdom,  there  is  but  one  rule  in  this  court  for  all  who  come  to 
it.  This  much  Mr.  Foote  may  depend  upon.  So  far  as  I  can  judge. 
some  of  the  expressions  whieh  he  read  si  emed  to  be  strong,  shall  I 
say  coarse  ? — expressions  of  contempt  and  hatred  for  the  generally 
recognized  truths  of  Christianity  and  for  the  Hebrew  Scriptures, 
which  are  said  to  have  been  inspired  by  God  Himself.  But  Mr. 
Foote  must  forgive  me  for  saying  that  this  is  no  argument  what- 
ever in  his  favour.     Let  me  explain. 

It  is  no  argument  for  a  burglar  or  a  murderer  (I  mean  no  offence 
to  Mr.  Foote  ;  I  should  be  unworthy  of  my  position  if  I  insulted 
anyone  in  his) — it  is  no  argument,  I  say,  in  favour  of  a  murderer  or 
a  burglar  that  some  other  person  has  also  committed  a  burglary  or  a 
murder.  Because  in  the  infinite  variety  of  human  affairs  some  persons 
may  have  escaped,  that  is  no  reason  why  others  should  not  be  brought 
[*  V03]  to  justice.  If  he  is  correct  in  his  citations  from  these 
writers,  it  seems  to  me  that  some  of  them  are  fairly  liable  to  such  a 
prosecution  as  his.  Suppose  they  are,  that  does  not  show  that  he  is 
not.  What  Mr.  Foote  had  to  show  was,  not  that  other  people  were 
bad,  but  that  he  was  good  ;  not  that  other  persons  were  guilty,  but 
that  he  was  innocent.  It  is  no  answer  to  bring  forward  these  other 
cases.  It  is  not  enough  to  say  these  other  persons  have  done  these 
things,  if  they  are  not  brought  before  us. 

Gentlemen,"  I  not  only  admit,  but  I  urge  upon  you,  and  on  every 
one  who  hears  me,  that  whilst  laxity  in  the  administration  of  the 
law  is  bad,  the  most  odious  laxity  of  all  is  discriminating  laxity, 
which  lays  hold  of  particular  persons  and  lets  other  persons  equally 
guilty  go  scot  free.  That  may  be,  that  is  so,  but  it  has  nothing  to 
do  with  this  case.  The  question  here  is  not  whether  other  persons 
ought  to  be  standing  where  Mr.  Foote  and  Mr.  Ramsey  now  stand, 
but  what  judgment  we  ought  to  pass  on  Mr.  Foote  and  Mr.  Ramsey, 
who  do  stand  here. 

In  short  and  in  fine,  we  have  to  administer  the  law  whether  we 
like  it  or  no.  It  is  undoubtedly  a  disagreeable  law,  or  may  become 
so,  but  I  have  given  you  some  reasons  for  thinking  it  not  so  bad  nor 
so  indefensible  as  Mr.  Foote  has  argued  that  it  is.  I  think  it,  on  tie 
contrary,  a  good  law  that  persons  should  be  obliged  to  respect  the 
feelings  and  opinions  of  those  amongst  whom  they  live.  I  assent 
to  the  passage  from  Michaelis,  that  in  a  Catholic  country  Ave  have 
no  right  to  insult  Catholic  opinion,  nor  in  a  Mohamedan  country 
have   we   any  right  to  insult  Mohamedan  opinion.      I    differ  from 

(626) 


B.    V.    RAMSKY    AND    FOOTE.  555 

both,  but  I  am  bound  as  a  good  citizen  to  treat  with  respect  opinions 
with  which  I  do  not  agree. 

Take  these  publications  with  you  ;  look  at  them  ;  if  you  think 
they  are  permissible  attacks  on  the  religion  of  the  country  you  will 
find  the  defendants  not  guilty.  Take  these  cartoons.  Mr.  Foote 
says  they  are  not  attacks  upon,  and  are  not  intended  for  caricatures 
of,  Almighty  God.  If  there  be  such  a  being,  says  Mr.  Foote,  he  can 
have  no  feeling  for  Almighty  God  but  profound  reverence  and  awe, 
but  this  he  says  is  his  mode  of  holding  up  to  contempt  what  he 
calls  a  caricature  of  that  ineffable  Being  as  delineated  in  the  Hebrew 
Scriptures.  This  is  for  you  to  try.  Look  at  them  and  judge  for 
yourselves  whether  they  do  or  do  not  come  within  the  widest  limits 
of  the  law.  If  they  do",  then  as  with  the  libels  find  the  defendants 
not  guilty.  But  if  you  think  that  they  do  not  come  within  the 
most  liberal  and  largest  view  that  any  one  can  give  of  the  law  as  it 
exists  now,  then  find  them  guilty.  Whatever  may  be  the  conse- 
quences— you  [*  704]  may  think  the  prosecution  unwise,  you  may 
think  the  law  undesirable,  you  may  think  no  publications  of  this  sort 
should  ever  be  made  the  subject  of  criminal  attack  (I  do  not  say  you 
do  think  so,  but  you  may),  it  matters  not — your  duty  is  to  obey 
the  law  ;  not  to  strain  it  in  favour  of  the  defendants  because  you  do 
not  like  the  prosecution  ;  not  to  strain  it  against  them  because  you 
do  not  yourselves  agree  with  the  statements  they  advocate,  as  you 
are  certain  entirely  to  disapprove  of  the  manner  in  which  they  advo- 
cate them.  Take  all  these  alleged  libels  into  your  consideration 
and  say  whether  you  find  Mr.  Foote  or  Mr.  Ramsey,  both  or  either, 
guilty  or  not  guilty  of  this  publication. 


(627) 


,7o5i  APPENDIX  G. 


A  Bill  for  the  abolition  of  Prosecutions  against  Laymen  for  the 
expression  of  opinion  on  matters  of  Religion. 

Whereas  certain  laws  now  in  force  which  were  intended  for  the 
promotion  of  religion  are  no  longer  suitable  for  that  purpose,  and  it 
is  expedient  to  repeal  them  : 

Be  it  therefore  enacted  by  the  Queen's  most  excellent  Majesty, 
by  and  with  the  advice  and  consent  of  the  lords  spiritual  and 
temporal,  and  commons,  in  this  present  parliament  assembled,  and 
by  the  authority  of  the  same  as  follows  : 

1.  After  the  passing  of  this  Act  no  criminal  proceedings  shall  be 
instituted  in  any  court  against  any  person  for  schism,  heresy, 
apostasy,  blasphemous  libel!,  blasphemy  at  common  law,  or  atheism  ; 
excepting  only  proceedings  instituted  in  ecclesiastical  courts  against 
spirituarpersons  of  the  Church  of  England,  or  in  the  courts  of  the 
Church  of  Scotland  against  ministers  or  preachers  of  that  church. 

2.  The  Acts  contained  in  the  schedule  of  this  Act,  are  hereby 
repealed  to  the  extent  in  the  third  column  of  that  schedule  mentioned. 

3.  Provided  that  nothing  herein  contained  shall  be  deemed  to 
affect  the  provisions  of  an  Act  passed  in  the  nineteenth  year  of  his 
late  Majesty  King  George  the  Second,  chapter  twenty-one,  intituled 
"An  Act  more  effectually  to  prevent  profane  cursing  and  swearing," 
or  any  other  provision  of  any  other  Act  of  Parliament  not  hereby 
expressly  repealed. 

*  Provided  moreover  that  any  person  who,  with  the  intention  of 
[*706]  wounding  the  religious  feelings  of  any  person  or  persons,  shall 
in  any  public  place  utter  any  word,  or  make  any  gesture,  or  exhibit 
any  object  within  the  hearing  or  sight  of  any  person  or  persons 
whose  religious  feelings  are  likely  to  be  thereby  wounded,  shall  be 
guilty  of  a  misdemeanour  ;  and  on  being  convicted  thereof,  shall  be 
liable  to  line  or  imprisonment,  or  both,  as  the  court  may  award, 
such  imprisonment  not  to  exceed  the  term  of  one  year. 

*  The  language  of  this  concluding  proviso  is  perhaps  too  wide.  It  is  not 
intended  to  impose  any  restriction  whatever  on  the  freest  exposition  of  opinions, 
however  heretical  ;  and  its  language  might  be  amended  so  as  to  prevent  any- 
possible  misconstruction.  Some  such  clause  is  in  my  opinion  desirable,  and 
indeed  necessary.     (See  ante,  pp.  469,  470.) 

(628) 


APPENDIX    O. 


557 


4.  This  Act  may  be  cited  as  the  Religious  Prosecutions  Abolition 
Act,  1887. 

SCHEDULE. 


1  Edw.  0,  c.  1. 


1  Eliz.  c.  2,  s  3. 


9  &  10  Wm.  3,  c. 
35. 

<6  Geo.  4,  c.  47. 


An  Act  against  such  as  shall  The  whole  Act 
unreverently  speak  against 
the  Sacrament  of  the  body 
and  blood  of  Christ,  com- 
monly called  the  Sacrament 
of  tli,'  Altar  ;  and  for  the 
receiving  thereof  in  both 
kinds. 

An  Act  for  the  uniformity 
of  Common  Prayer  and. 
Divine  Service  in  the' 
Church  and  the  Administra- 
tion of  the  Sacrament 


An  Act  for  the  more  effectual 
suppressing  of  blasphemy 
and  profaneness. 

An  Act  for  restricting  the 
punishment  of  leasing, 
making  sedition  and  bias 
phemy  in  Scotland. 


In  section  3  the  words  "shall 
in  any  interludes,  plays, 
songs,  rhymes,  or  by  other 
open  words,  declare  or  speak 
anything  in  the  derogation, 
depraving,  or  despising  of 
the  same  book,  or  of  any- 
thing therein  contained  or 
any  part  thereof,  or." 

The  whole  Act. 


So  much  of  the  Act  as  relates 
to  the  crime  of  blasphemy. 


(629^ 


[-707] 


APPENDIX  D- 


STATUTES. 


CONTENTS 


3  Edw.  I.  Westminster  I.  c.  34 
13  Edw.  I.  stat.  4     .         .         . 
2  Rich.  II.  stat.  I.  c.  5. 
i  Rich.  II.  c.  11     . 


1 

13  Car.  II.  stat.  I.  c.  1. 

4  William  &  Mary,  c.  18,  s.  1 
32  Geo.  III.  c  60.     (Mr.  Fox's  Libel  Act) 

39  Geo.  III.  c.  79  * 

51  Geo.  III.  c.  65,  s.  3 

60  Geo.  III.  &  1  Geo.  IV.  c.  8,  ss.  1,  2    . 

5  Geo.  IV.  c.  83,  s.  4  . 

6  &  7  Will.  IV.  c.  76,  s.  19      . 

1  &  2  Vict.  c.  38,  s.  2 

2  &  3  Vict.  c.  12,  ss.  2,  3,  4     . 

3  &  4  Vict.  c.  9 

6  &  7  Vict.  c.  96.     (Lord  Campbell's  Act.) 

8  &  9  Vict.  c.  75  .... 

9  &  10  Vict.  c.  33,  s.  1     . 
11  &  12  Vict.  c.  12,  s.  3       . 
15  &  16  Vict  c.  76  (C.  L.  P.  Act,  1852),  s. 
IS  &  19  Vict.  c.  41        .... 

20  &  21  Vict.  c.  83 

23  &,  24  Vict   c   32  * 

43  &  44  Vict.  c.  41  (Burial  Law  Amendment  Act,  1880) 


01 


s.  7 


44  &  45  Vict.  c.  60  (Newspaper  Libel  and  Registration  Act,  1881) 


•AGE 

134 
708 
135 
136 
708 
709 
710 
711 
712 

ib'-. 
713 

ib. 
714 

715 
716 
719 
720 
721 

ib, 
752 

ib. 
72  i 

ib. 
725 


(630^ 


A.PPE2TDIX    D.  559 


[*708]  APPENDIX  OF  STATUTES. 

THE  STATUTE  OF  CIRCUMSPECTE  AGATIS. 

13  EDW.  I.  Stat.  4. 

[a.d.  1285.] 

The  King  to  his  judges  sendeth  greeting  :— 

1.  Use  yourself  circumspectly  in  all  matters  concerning  the  Bishop  of  Nor- 
wich and  his  clergy,  not  punishing  them  if  they  hold  plea,  in  Court  Christian, 
of  such  things  as  be  mere  spiritual,  that  is  to  wit,  of  penance  enjoined  by  prel- 
ates for  deadly  sin,  as  fornication,  adultery,  and  such  like,  for  the  which  some- 
times corporal  penance,  and  sometimes  pecuniary  is  enjoined.   .   .   .   . 

6.  And  for  laying  violent  hands  on  a  clerk,  and  in  cause  of  defamation,  it  hath 
been  granted  already,  that  it  shall  be  tried  in  a  Spiritual  Court,  when  money  is 
not  demande  /,  but  [a  thing  done]  for  punishment  of  sin,  and  likewise  for  break- 
ing an  oath 

12.  In  c  tuses  of  defamation,  prelates  may  freely  correct,  tin-  King's  prohibition 
notwithstanding  ;  first  enjoining  a  corporal  penance,  whir//,  if  the  party  will 
redeem,  tlie  prelate  may  /awfully  recti  re  the  money,  though  the  prohibition  be 
shoire  I.  en 

[KB.— The  words  in  italics,  being  rendered  unnecessary  by  the  18  &  19 
Vict.  c.  41,  are  now  repealed  by  the  Stat.  Law.  Revn.  Act,  1863,  26  &  27  Vict, 
c.  125.] 


SCANDALUM  MAGNATUM. 

3  Edw.  I.  Stat,  Westminster  I.  c.  34 ante,  p.  134 

2  Rich.  II.  stat.  I.  c.  5 ante,  p.  135 

12  Rich.  II.  c.  11 •        .        .        .        .  ante,  p.  136 


13  CAR.  II.  Stat.  I.  c.  1. 

[a.d.  1661.] 
Sect,  3.  And  to  the  end  that  no  man  hereafter  may  be  misled  into  any  seditious 
or  unquiet  demeanour  out  of  an  opinion  that  the  Parliament  begun  and  held  at 
Westminster  upon  the  third  day  of  November,  in  the  year  of  our  Lord  1640,  is 
yet  in  being  which  is  undoubtedly  dissolved  and  determined,  and  so  is  hereby 
declared  and  adjudged  to  be  fully  dissolved  and  determined,  or  out  of  an  opinion 
that  there  lies  an  obligation  upon  him  from  any  oath,  covenant,  or  engagement 
whatsoever,  to  endeavour  a  change  of  government  either  in  church  or  state,  or 
out  of  an  opinion  that  both  Houses  of  Parliament,  or  either  of  them  have  a 
legislative  power  without  the  king,  all  which  assertions  have  been  seditiously 
maintained  in  some  pamphlets  lately  printed,  and  are  daily  promoted  by  the 
[*709]  active  enemies  of  our  peace  and  happiness:  Be  it  therefore  further 
enacted  by  the  authority  aforesaid,  that  if  any  person  or  persons  at  any  time 
after  the  four  and  twentieth  day  of  June,  in' the  year  of  our  Lord  1661,  shall 

(631) 


560  APPENDIX    1). 

maliciously  and  advisedly,  by  writing,  printing,  preaching,  or  other  speaking 
express,  publish,  niter,  declare,  or  affirm  that  the  Parliament  begun  at  West- 
minster upon  the  third  day  of  November,  in  the  year  of  our  Lord  1640,  is  not 
yet  dissolved,  or  is  not  determined,  or  that  it  ought  to  be  in  being,  or  hath  yet 
any  continuance  or  existence,  or  that  there  lies  any  obligation  upon  him  or  any 
other  person  from  any  oath,  covenant,  or  engagement  whatsoever,  to  (  ndeavour 
a  change  of  government  either  in  church  or  state,  or  that  both  Houses  of  Parlia- 
ment, or  either  House  of  Parliament  have  or  hath  a  legislative  power  without 
the  king,  or  any  other  words  to  the  same  effect,  that  then  every  such  person 
and  persons  so'  aforesaid  offending  shall  incur  the  danger  and  penalty  of  a 
premunire  mentioned  in  a  statute  made  in  the  16th  year  of  the  reign  of  King 
Richard  the  Second.  And  it  is  hereby  also  declared  that  the  oath  usually 
called  the  solemn  league  and  covenant  was  in  itself  an  unlawful  oath  and  im- 
posed upon  the  subjects  of  this  realm  against  the  fundamental  laws  and 
liberties  of  this  kingdom,  and  that  all  orders  and  ordinances  or  pretended 
orders  and  ordinances  of  both  or  either  Houses  of  Parliament  for  imposing 
of  oaths,  covenants,  or  engagements,  levying  of  taxis,  or  raising  of  forces  and 
arms,  to  which  the  royal  assent  either  in  person  or  by  commission  was  not  ex- 
pressly had  or  given,  were  in  their  first  creation  and  making,  and  still  are,  and 
so  shall  be  taken  to  be  null  and  void  to  all  intents  aud  purposes  whatso- 
ever  

See  ante,  pp.  486,  488. 


4  WILLIAM  &  MARY,  c.  18. 

An  Act  to  prevent  malicious  informations  in  the  Court  of  King's  Bench. 

[a.d.  1692.] 
Sect.  1.  The  clerk  of  the  crown  in  the  said  Court  of  King's  Bench  for  the 
time  being  shall  not  without  express  order,  to  be  given  by  the  said  court  in 
open  court,  exhibit,  receive,  or  file  any  information  for  any  of  the  causes  afore- 
said, or  issue  out  any  process  thereupon,  before  he  shall  have  taken  or  shall 
have  delivered  to  him  a  recognizance  from  the  person  or  persons  procuring 
such  information  to  be  exhibited  with  the  place  of  his,  her,  or  their  abode,  title, 
or  profession,  to  be  entered  to  the  person  or  persons  against  whom  such  infor- 
mation or  informations  is  or  are  to  be  exhibited  in  the  penalty  of  twenty 
pounds,  that  he,  she,  or  they  will  effectually  prosecute  such  informations  or 
information,  and  abide  by  and  observe  such  orders  as  the  said  court  shall 
direct,  which  recognizance  the  said  clerk  of  the  crown  and  also  every  justice  of 
the  peace  of  any  county,  city,  franchise  or  town  corporate  (where  the  cause  of 
any  such  information  shall  arise),  are  hereby  empowered  to  take,  after  the  tak- 
ing whereof  by  the  said  clerk  of  the  crown,  or  the  receipt  thereof  from  any 
justice  of  the"  peace,  the  said  clerk  of  the  crown  shall  make  an  entry  thereof 
upon  record,  and  shall  file  a  memorandum  thereof  in  some  public  place  in  his 
office,  that  all  persons  may  resort  thereunto  without  fee.  And  in  case  any 
person  or  persons  against  whom  any  information  or  informations  for  the  causes 
aforesaid,  or  any  [*  710]  of  them,  shall  be  exhibited,  shall  appear  thereunto  and 
plead  to  issue,  and  that  the  prosecutor  or  prosecutors  of  such  information  or 
informations  shall  not  at  his  and  their  own  proper  costs  and  t  barges  within  one 
whole  year  next  after  issue  joined  therein  procure  the  same  to  be  tried,  or  if 
upon  such  trial  a  verdict  pass  for  the  defendant  or  defendants,  or  in  case  the 
said  informer  or  informers  procure  a  noli  prosequi  to  be  entered  then  m  any  ot 
the  said  cases  the  said  Court  of  King's  Bench  is  hereby  authorized  to  award  to 
the  said  defendant  and  defendants,  his,  her,  or  their  costs,  unless  the  judge 
before  whom  such  information  shall  be  tried  shall  at  the  trial  of  such  informa- 
tion in  open  court  certify  upon  record  that  there  was  a  reasonable  cause  for 
exhibiting  such  information.  And  in  case  the  said  informer  or  informers  shall 
not  within  three  months  next  after  the  said  costs  taxed  and  demand  made 
thereof,  pay  to  the  said  defendant  or  defendants  the  said  costs,  then  the 
said  defendant  and  defendants  shall  have  the  benefit  of  the  said   recognizance 

to  compel  them  thereunto. 

See  ante,  pp.  610,  613. 

(632) 


STATUTES. 

MR.  FOX'S  LIBEL  ACT. 
32  GEO.  III.  c.  60. 


561 


[a.  d.  1792.] 
An  Act  to  remove  doubts  respecting  the  Functions  of  Juries  in  Cttscs  of  Libel. 

Whereas  doubts  have  arisen  whether  on  the  trial  of  an  indictment  or  infor- 
mation for  the  making  or  publishing  any  libel,  where  an  issue  or  issues  are 
joined  between  the  King  and  the  defendant  or  defendants,  or  the  plea  of  not 
guilty  pleaded,  it  be  competent  to  the  jury  impanelled  to  try  the  same  to  give 
their  verdict  upon  the  whole  matter  in  issue:  Be  it  therefore  declared  and 
enacted  by  the  King's  most  excellent  Majesty,  and  by  and  with  the  advice  and 
consent  of  the  lords  spiritual  and  temporal,  and  commons,  in  this  present 
Parliament  assembled,  and  by  the  authority  of  the  same,  that  on  every  such 
trial  the  jury  sworn  to  try  the* issue  may  give  a  general  verdict  of  guilty  or  not 
guilty  upon  the  whole  matter  put  in  issue  upon  such  indictment  or  informa- 
tion, and  shall  not  be  required  or  directed  by  the  court  or  judge  before  whom 
such  indictment  or  information  shall  be  tried  to  find  the  defendant  or  defend- 
ants guilty  merely  on  the  proof  of  the  publication  by  such  defendant  or  de- 
fendants of  the  paper  charged  to  be  a  libel,  and  of  the  sense  ascribed  to  the 
same  in  such  indictment  or  information. 

2.  Provided  always,  that  on  every  such  trial  the  court  or  judge  before  whom 
such  indictment  or  information  shall  be  tried  shall,  according  to  their  or  his 
direction,  <rive  their  or  his  opinion  and  directions  to  the  jury  on  the  matter 
in  issue  between  the  King  and  the  defendant  or  defendants,  in  like  manner  as 
in  other  criminal  cases. 

3.  Provided  also,  that  nothing  herein  contained  shall  extend  or  be  construed 
to  extend  to  prevent  the  jury  from  finding  a  special  verdict,  in  their  discretion, 
as  in  other  criminal  cases. 

[*  711]  4.  provided  also,  that  in  case  the  jury  shall  find  the  defendant  or  de- 
fendants guilty  it  shall  and  may  be  lawful  for  the  said  defendant  or  defendants 
to  move  in  arrest  of  judgment,  on  such  ground  and  in  such  manner  as  by  law 
he  or  they  might  have  done  before  the  passing  of  this  Act,  anything  herein  con- 
tained to  the  contrary  notwithstanding. 

See  ante,  pp.  94,  362,  604. 


39  GEO.  III.  c.  79. 


[a.  d.  1799.] 

Sect.  28.  Nothing  in  this  Act  contained  shall  extend  or  be  construed  to  ex- 
tend to  any  papers  printed  by  the  authority  and  for  the  use  of  cither  House  of 
Parliament. 

Sect,  29.  Every  person  who  shall  print  any  paper  for  hire,  reward,  gain,  or 
profit,  shall  carefully  preserve  and  keep  one  copy  (at  least)  of  every  paper  so 
printed  by  him  or  her,  on  which  he  or  she  shall  write,  or  cause  to  be  written  or 
printed,  in  fair  and  legible  characters,  the  name  and  place  of  abode  of  the  per- 
son or  persons  by  whom  he  or  she  shall  be  employed  to  print  the  same,  and 
every  person  printing  any  paper  for  hire,  reward,  gain  or  profit  who  shall 
omit  or  neglect  to  write,  or  cause  to  be  written  or  printed  as  aforesaid,  the 
name  and  place  of  his  or  her  employer  on  one  of  such  printed  papers,  or  to  keep 
or  preserve  the  same  for  the  space  o*f  six  calendar  months  next  after  the  printing 
thereof,  or  to  produce  and  show  the  same  to  any  justice  of  the  peace  who  within 
the  said  space  of  six  calendar  months  shall  require  to  see  the  same,  shall  for 
every  such  omission,  neglect,  or  refusal  forfeit  and  lose  the  sum  of  twenty 
pounds, 

Sect,  31.  Nothing  herein  contained  shall  extend  to  the  impression  of  any  en- 
graving, or  to  the  printing  by  letter-press  of  the  name,  or  the  name  and  address, 
printina;,  or  business  or  profession,  of  any  person,  and  the  articles  in  which  he 
deals,  or  to  any  papers  for  the  sale  of  estates  or  goods  by  auction  or  otherwise. 

36  LIB.   &  SLAN.  (633) 


56^  APPENDIX   D. 

Sect.  34.  No  person  shall  be  prosecuted  or  sued  for  any  penalty  imposed  by 
this  Act,  unless  such  prosecution  shall  be  commenced,  or  such  action  shall  be 
brought,  within  three  calendar  months  next  alter  such  penalty  shall  have  been 
incurred. 

Sect.  35.  And  any  pecuniary  penalty  imposed  by  this  Act,  and  not  exceeding 
the  sum  of  twenty  pounds,  shall  and  maybe  recovered  before  any  justice  or 
justices  of  the  peace  for  the  county,  stewarrty,  riding,  division,  city,  town,  or 
place,  in  which  the  same  shall  be  incurred,  or  the  person  having  incurred  the 
same  shall  happen  to  be,  in  a  summary  way. 

Sect.  36.  All  pecuniary  penalties  hereinbefore  imposed  by  this  Act  shall,  when 
recovered  in  a  summary  way  before  any  justice,  be  applied  and  disposed  of  in 
manner  hereinafter  mentioned  ;  that  is  to  say,  one  moiety  thereof  to  the  infor- 
mer before  any  justice,  and  the  other  moiety  thereof  to  his  Majesty,  his  heirs 
and  successors. 

[N.  B. — The  above  sections  are  continued  and  re-enacted  by  32  &  33  Vict. 
c.  24,  schedule  2  ;  while  other  sections  of  the  same  statute  are  repeated  by 
schedule  1.] 

[*712]  51  GEO.  III.  c.  65. 

[a.  d.  1811.] 

Sect.  3.  Nothing  in  the  said  Act  of  the  thirty-ninth  year  of  King  George  the 
Third,  chapter  seventy-nine,  or  in  this  Act  contained,  shall  extend  or  be  con- 
strued to  extend  to  require  the  name  and  residence  of  the  printer  to  be  printed 
upon  any  bank  note,  or  bank  post  bill  of  the  Governor  and  Company  of  the 
Bank  of  England,  upon  any  bill  of  exchange,  or  promissory  note,  or  upon  any 
bond  or  other  security  for  payment  of  money,  or  upon  any  bill  of  lading,  policy 
of  insurance,  letter  of  attorney,  deed,  or  agreement,  or  upon  any  transfer  or 
assignment  of  any  public  stocks,  funds,  or  other  securities,  or  upon  any  transfer 
or  assignment  of  the  stocks  of  any  public  corporation  or  company  authorized 
or  sanctioned  by  Act  of  Parliament,  or  upon  any  dividend  warrant  of  or  for  any 
such  public  or  other  stocks,  funds,  or  securities,  or  upon  any  receipt  for  money 
or  goods,  or  up  u  any  proceeding  in  any  court  of  law  or  equity,  or  in  any 
inferior  court,  warrant,  order,  or  other  papers  printed  by  the  authority  of  any 
public  board  or  public  officer  in  the  execution  of  the  duties  of  their  respective 
offices,  notwithstanding  the  whole  or  any  part  of  the  said  several  securities, 
instruments,  proceedings,  matters,  and  things  aforesaid  shall  have  been  or  shall 
be  printed. 

[X.  B. — This  section  is  continued  and  re-enacted  by  the  32  &  33  Vict.  c.  24, 
schedule  2.] 


60  GEO.  III.  and  1  GEO  IV.  c.  8. 


An  Act  for  the  more  effectual  Prevention  and  Punishment  of  blasphemous  and 
seditious  Libels.  '    [30th  December,  1819.] 

Whereas  it  is  expedient  to  make  more  effectual  provision  for  the  punishment 
of  blasphemous  ami  seditious  libels  :  Be  it  enacted  by  the  King's  most  excellent 
Majesty,  by  and  with  the  advice  and  consent  of  the  lords  spiritual  and  temporal, 
and  commons,  in  this  present  parliament  assembled,  and  by  the  authority  of  the 
same,  that  from  and  after  the  passing  of  this  Act,  in  every  case  in  which  any 
verdict  or  judgment  by  default  shall  be  had  against  any  person  for  composing, 
printing,  or  publishing  any  blasphemous  libel,  or  any  seditious  libel  tending  to 
bring  into  hatred  or  contempt  the  person  of  his  Majesty,  his  heirs  or  successors, 
or  the  Regent,  or  the  government  and  constitution  of  the  United  Kingdom  as 
by  law  established,  or  either  House  of  Parliament,  or  to  excite  his  Majesty's 
subjects  to  attempt  the  alteration  of  any  matter  in  church  or  state  as  by  law 
established,  otherwise  than  by  lawful  means,  it  shall  be  lawful  for  the  judge  or 
the  court  before  whom  or  in  which  such  verdict  shall  have  been  given,  or  the 
court  in  which  such  judgment  by  default  shall  be  had,  to  make  an  order  for  the 

(634) 


STATUTES.  563 

seizure  and  carrying  away  and  detaining  in  safe  custody,  in  such  manner  as 
shall  be  directed  in  such  order,  all  copies  of  the  libel  which  shall  be  in  the 
possession  of  the  person  against  whom  such  verdict  or  judgment  shall  have 
been  had,  or  in  the  possession  of  any  other  person  named  in  the  order  for  his 
use.  evidence  upon  oath  having  been  previously  given  to  the  satisfaction  of  such 

court  or  judge,  that  a  copy  or  copies  of  the  said  libel   is  or  are  in   the  possession 

of  such  other  person  for  the  use  oi  the  person  against  whom  such  verdict  or 
judgment  shall  have  been  had  as  aforesaid  ;  and  in  every  such  case  it   shall  be 

[■•71:;]  lawful  for  any  justice  of  the  peace  or  for  any  constable  or  other  peace 
officer  acting  under  any  such  order,  or  for  any  person  or  persons  acting  with  or 
in  aid  of  any  such  justice  of  the  peace,  constable,  or  other  peace  officer,  to 
search  for  any  copies  of  such  lihel  in  any  house,  building,  or  other  place  what- 
soever belonging  to  the  person  against  whom  any  such  verdict  or  judgment 
shall  have  been  had,  or  to  any  other  person  so  named,  in  whose  possession  any 
copies  of  any  such  libel,  belonging  to  the  person  against  whom  any  such  ver- 
dict or  judgment  shall  have  been  had,  shall  be  ;  and  in  case  admission  shall  be 
refused' or  not  obtained  within  a  reasonable  time  after  it  shall  have  been  first 
demanded,  to  enter  by  force  by  day  into  any  such  house,  building,  or  place 
whatsoever,  and  to  carry  away  all  copies  of  the  libel  there  found,  and  to  detain 
the  same  in  safe  custody,  until  the  same  shall  be  restored  under  the  provisions 
of  this  Act,  or  disposed  of  according  to  any  further  order  made  in  relation  thereto. 
2.  And  be  it  further  enacted,  that  if  in  any  such  case  as  aforesaid  judgment 
shall  be  arrested,  or  if,  after  judgment  shall  have  been  entered,  the  same  shall 
be  reversed  upon  any  writ  of  error,  all  copies  so  seized  shall  be  forthwith 
returned  to  the  person  or  persons  from  whom  the  same  shall  have  been  so  taken 
as  aforesaid,  free  of  all  charge  and  expense,  and  without  the  payment  of  any 
fees  whatever  ;  and  in  every  case  in  which  final  judgment  shall  be  entered  upon 
the  verdict  so  found  against  the  person  or  persons  charged  with  having  com- 
posed, printed,  or  published  such  libel,  then  all  copies  so  seized  shall  be  disposed 
of  as  the  court  in  which  such  judgment  shall  be  given  shall  order  and  direct. 


5  GEO.  IV.  c.  83. 

[21**  June,  1824.] 

Sect,  4 Evert  person  wilfully  exposing  to  view,  in  any  street,  road, 

highway,  or  public  place,  any  obscene  print,  picture,  or  other  indecent  exhibi- 
tion, ....  shall  be  deemed' a  rogue  and  vagabond,  within  the  true  intent  and 
meaning  of  this  Act  ;  and  it  shall  be  lawful  for  any  justice  of  the  peace  to  com- 
mit such  offender  (being  thereof  convicted  before  him  by  the  confession  of  such 
offender,  or  by  the  evidence  on  oath  of  one  or  more  credible  witness  or  wit- 
nesses) to  the  house  of  correction,  there  to  be  kept  to  hard  labour  for  any  time 
not  exceeding  three  calendar  months 


6  &  7  YVTLL.  IV.  C.  76. 

[a.d.  1836.] 

Sect.  19.  If  any  person  shall  file  any  bill  in  any  court  for  the  discovery  of  the 
name  of  any  person  concerned  as  printer,  publisher,  or  proprietor  of  any  news- 
paper, or  of  any  matters  relative  to  the  printing  or  publishing  of  any  newspaper, 
in  order  the  more  effectually  to  bring  or  canyon  any  suit  or  action  for  damages 
alleged  to  have  been  sustained  by  reason  of  any  slanderous  or  libellous  matter 
contained  in  any  such  newspaper  respecting  such  person,  it  shall  not  be  lawful 
for  the  defendant  to  plead  or  demur  to  such  bill,  but  such  defendant  shall  be 
compellable  to  make  the  discovery  required  ;  provided  always,  that  such  dis- 
[*714]  covery  shall  not  be  made  use  of  as  evidence  or  otherwise  in  any  proceed- 
ing against  the  defendant,  save  only  in  that  proceeding  for  which  the  discovery 
is  made. 

[N.B  — This  section  applies  to  Ireland.  It  was  re-enacted  by  32  &  33  Vict, 
c.  24,  schedule  2,  and  therefore  remains  law,  although  the  original  statute,  6  & 

(635) 


564  APPENDIX    P. 


7  Will.  IV.  c.  76,  was  wholly  repealed,  -without  any  alludon  to  this  section,  by 
the  33  &  34  Vict.  c.  99.     See  ante,  pp.  551— 553.] 


1  &  2  VICT.  c.  38. 

[a.d.  1838.] 
Sect.  2.  And  whereas  by  the  said  recited  Act  {i.  e.,  the  5  Geo.  IV.  e.  83,  s.  4, 
and  not  as  stated  in  the  margin  to  the  Revised  Edition  of  the  Statutes,  vol.  riii. 
p  216,  the  5  Geo.  111.  c.  83,  s.  5)  it  is  enacted,  that  every  person  wilfully 
exposing  to  view  in  any  street,  road,  highway,  or  public  place  any  obscene  print, 
picture,  or  other  indecent  exhibition  shall,  on  summary  conviction  thereof,  be 
liable  to  punishment  as  therein  provided  :  And  whereas  doubts  have  arisen 
whether  the  exposing  to  public  view  in  the  windows  of  shops  in  streets,  high- 
ways, or  other  public  places,  of  any  obscene  print,  picture,  or  other  indecent 
exhibition,  is  an  offence  within  the  meaning  of  the  said  recited  Act:  Be  it 
therefore  declared  and  enacted,  that  every  person  who  shall  wilfully  expose  or 
cause  to  be  exposed  to  public  view  in  the  window  or  other  part  of  any  shop  or 
other  building  situate  in  any  street,  road,  highway,  or  public  place,  any  obscene 
print,  picture,  or  other  indecent  exhibition,  shall  be  deemed  to  have  wilfully 
exposed  such  obscene  print,  picture,  or  other  indecent  exhibition  to  public  view 
within  the  intent  and  meaning  of  the  said  Act,  and  shall  accordingly  be  liable  to 
be  proceeded  against,  and  onconviction,  to  be  punished  under  the  provisions  of 
the  said  Act. 


2  &  3  Vict.  c.  12. 

[a.d.  1839.] 

Sect.  2.  Every  person  who  shall  print  any  paper  or  book  whatsoever  which 
shall  be  meant  to  be  published  or  dispersed,  and  who  shall  not  print  upon  the 
front  of  every  such  paper,  if  the  same  shall  be  printed  on  one  side  only,  or  upon 
the  first  or  last  leaf  of  every  paper  or  book  which  shall  consist  of  more  than  one 
leaf,  in  legible  characters,  his  or  her  name  and  usual  place  of  abode  or  business, 
and  every  person  who  shall  publish  or  disperse,  or  assist  in  publishing  or  dis- 
persing, any  printed  paper  or  book  on  which  the  name  and  place  of  abode  of 
the  person  printing  the  same  shall  not  be  printed  as  aforesaid,  shall  for  every 
copy  of  such  paper  so  printed  by  him  or  her  forfeit  a  sum  not  more  than  five 
pounds  :  Provided  always,  that  nothing  herein  contained  shall  be  construed  to 
impose  any  penalty  upon  any  person  for  printing  any  paper  excepted  out  of  the 
operation  of  the  said  Act  of  the  thirty-ninth  year  of  King  George  the  Third, 
chapter  seventy-nine,  either  in  the  said  Act  or  by  any  Act  made  for  the  amend- 
ment thereof. 

[*715]  Sect.  3.  In  the  case  of  books  or  papers  printed  at  the  University  Press 
of  Oxford,  or  the  Pitt  Press  of  Cambridge,  the  printer,  instead  of  printing  his 
name  thereon,  shall  print  the  following  words,  "Printed  at  the  University 
Press,  Oxford,"  or  "  The  Pitt  Press,  Cambridge,"  as  the  case  may  be. 

Sect.  4.  Provided  always,  that  it  shall  not  be  lawful  for  any  person  or. persons 
whatsoever  to  commence,  prosecute,  enter,  or  file,  or  cause  or  procure  to_  be 
commenced,  prosecuted,  entered,  or  filed,  any  action,  bill,  plant,  or  information 
in  any  of  her  Majesty's  Courts,  or  before  any  justice  or  justices  of  the  peace, 
against  any  person  or  persons  for  the  recovery  of  any  fine,  penalty,  or  forfeiture 
made  or  incurred,  or  which  may  hereafter  be  incurred,  under  the  provisions  of 
this  Act,  unless  the  same  be  commenced,  prosecuted,  entered,  or  filed  in  the 
name  of  Her  Majesty's  Attorney-General  or  Solicitor-General  in  that  part  of 
Great  Britain  called  "England,  or  Her  Majesty's  Advocate  for  Scotland  (as  the 
case  may  be  respectively) ;  and  if  any  action,  bill,  plaint,  or  information  shall 
be  commenced,  prosecuted,  or  filed  in  the  name  or  names  of  any  other  person 
or  persons  than  is  or  are  in  that  behalf  before  mentioned,  the  same  and  every 
proceeding  thereupon  had  are  hereby  declared  and  the  same  shall  be  null  and 
void  to  all  intents  and  purposes. 

|  X.B.  -  The  above  sections  are  re-enacted  by  32  &  33  Vict.  c.  24,  schedule  2  ; 
the  rest  of  the  Act  is  repealed  by  schedule  1.] 

(636) 


STATUTES.  565 

3  &  4  Vict.  c.  9. 

An  Act  to  give  Summary  Protection  to  Persons  employed  in  the  Publication  >>f 

Parliamentary  Papers.  [\4th  April,  1840.] 

Wiikkf.as  it  is  essential  to  the  due  and  effectual  exercise  and  discharge  of 
the  functions  and  duties  of  Parliament,  and  to  the  promotion  of  wise  legislation, 

that  no  instructions  or  impediments  should  exist  to  the  publication  of  such  of 
the  reports,  papers,  votes,  or  proceedings  of  cither  House  of  Parliament,  as  such 
House  of  Parliament  may  deem  lit  or  necessary  to  he  published  :  And  whereas 
obstructions  or  impediments  to  such  publication  have  arisen,  and  hereaftermay 
arise,  by  means  of  civil  or  criminal  proceedings  being  taken  against  persons 
employed  by  or  acting  under  the  authority  of  the  Houses  of  Parliament,  or  one 
of  them,  in  the  publication  of  such  reports,  papers,  votes,  or  proceedings  ;  by 
reason  and  for  remedy  whereof  it  is  expedient  that  more  speedy  protection 
should  be  afforded  to  all  persons  acting  under  the  authority  aforesaid,  and  that 
all  such  civil  or  criminal  proceedings  should  be  summarily  put  an  end  to  and 
determined  in  manner  hereinafter  mentioned  :  Be  it  therefore  enacted  by  the 
Queen's  most  excellent  Majesty,  by  and  with  the  advice  and  consent  of  the 
lords  spiritual  and  temporal,  and"  commons,  in  this  present  Parliament  assembled 
and  by  the  authority  of  the  same,  That  it  shall  and  may  be  lawful  for  any  person 
or  persons  who  now  is,  or  are,  or  hereafter  shall  be,  a  defendant  or  defendants  in 
any  civil  or  criminal  proceedings  commenced  or  prosecuted  in  any  manner  soever, 
for  or  on  account  or  in  respect  of  the  publication  of  any  such  report,  paper, 
votes  or  proceedings  by  such  person  or  persons,  or  by  his,  her,  or  their  servant 
or  servants,  by  or  under  the  authority  of  either  House  of  Parliament,  to  bring 
before  the  court  in  which  such  proceeding  shall  have  been  or  shall  be  so  com- 
menced or  [*716]  prosecuted,  or  before  any  judge  of  the  same  (if  one  of  the 
Superior  Courts  at  Westminster),  first  giving  twenty-four  hours'  notice  of  his 
intention  so  to  do  to  the  prosecutor  or  plaintiff  in  such  proceeding,  a  certificate 
under  the  hand  of  the  Lord  Chancellor  of  Great  Britain,  or  the  Lord  Keeper  of 
the  Great  Seal,  or  of  the  Speaker  of  the  House  of  Lords,  for  the  time  being,  or 
of  the  clerk  of  the  Parliament  or  of  the  Speaker  of  the  House  of  Commons,  or 
of  the  clerk  of  the  same  House,  stating  that  the  report,  paper,  votes,  or  pro- 
ceedings as  the  case  may  be,  in  respect  wdiereof  such  civil  or  criminal  proceed- 
ing shall  have  been  commenced  or  prosecuted,  was  published  by  such  person 
or  persons,  or  by  his,  her,  or  their  servant  or  servants,  by  order  or  under  the 
authority  of  the  House  of  Lords  or  of  the  House  of  Commons,  as  the  case  may 
be,  together  with  an  affidavit  verifying  such  certificate  ;  and  such  court  or  judge 
shall  "thereupon  immediately  stay  such  civil  or  criminal  proceeding,  and  the 
same,  and  every  writ  or  process  issued  therein,  shall  be  and  shall  be  deemed 
and  taken  to  be  finally  put  an  end  to,  determined,  and  superseded  by  virtue  of 
this  Act. 

2.  And  be  it  enacted,  that  in  case  of  any  civil  or  criminal  proceeding  here- 
after to  be  commenced  or  prosecuted  for  or  on  account  or  in  respect  of  the  pub- 
lication of  any  copy  of  such  report,  paper,  votes,  or  proceedings,  it  shall  be 
lawful  for  the'  defendant  or  defendants  at  any  stage  of  the  proceedings  to  lay 
before  the  court  or  judge  such  report,  paper,  votes,  or  proceedings,  and  such 
copy,  with  an  affidavit  Verifying  such  report,  paper,  votes,  or  proceedings,  and 
the  correctness  of  such  copy,  and  the  court  or  judge  shall  immediately  stay 
such  civil  or  criminal  proceeding  ;  and  the  same,  and  every  writ  or  process 
issued  therein,  shall  be  and  shall  be  deemed  and  taken  to  be  finally  put  an  end 
to,  determined  and  superseded  by  virtue  of  this  Act, 

3.  And  be  it  enacted,  that  it  shall  be  lawful  in  any  civil  or  criminal  proceed 
iug  to  be  commenced  or  prosecuted  for  printing  any  extract  from  or  abstract  of 
such  report,  paper,  votes  or  proceedings,  to  give  in  evidence  under  the  general 
issue,  such  report,  paper,  votes  or  proceedings,  and  to  show  that  such  extract 
or  abstract  was  published  bond  fide  and  without  malice  ;  and  if  such  shall  be 
the  opinion  of  the  jury,  a  verdict  of  not  guilty  shall  be  entered  for  the  defend- 
ant or  defendants. 

4.  Provided  always,  and  it  is  hereby  expressly  declared  and  enacted,  that 
nothing    herein  contained   shall    be  deemed  or  taken,  or  held  or  construed, 

(637) 


56G  APPENDIX    D. 

directly  or  indirectly,  by  implication  or  otherwise,  to  affect  the  privileges  of 
Parliament  in  any  manner  whatsoever. 

See  ante,  pp.  185,  525. 


LORD   CAMPBELL'S   LIBEL  ACT. 

6  &  7  VICT.  c.  90. 

An  Act  to  amend  the  Law  respecting  Defamatory  Words  and  Libel. 

[Mth  August,  1843.] 

For  the  better  protection  of  private  character,  and  for  more  effectually 
securing  the  liberty  of  the  press,  and  for  better  preventing  abuses  in  exercising 
the  said  liberty,  be  it  enacted  by  the  Queen's  most  excellent  Majesty,  by  and 
with  the  advice  and  consent  of  the  lords  spiritual  and  temporal,  and  commons, 
in  this  present  Parliament  assembled,  and  by  the  authority  of  the  same,  that  in 
[*717]  any  action  for  defamation  it  shall  be  lawful  for  the  defendant  (after  no- 
tice in  writing  of  his  intention  so  to  do,  duly  given  to  the  plaintiff  at  the  time 
of  riling  or  delivering  the  plea  in  such  action)  to  give  in  evidence,  in  mitigation 
of  damages,  that  he  made  or  offered  an  apology  to  the  plaintiff  for  such  defam- 
ation before  the  commencement  of  the  action,  or  as  soon  afterwards  as  he  had 
an  opportunity  of  doing  so,  in  case  the  action  shall  have  been  commenced  before 
there  was  an  opportunity  of  making  or  offering  such  apology. 
See  ante,  pp.  322,  542. 

2.  And  be  it  enacted,  that  in  an  action  for  a  libel  contained  in  any  public 
newspaper  or  other  periodical  publication  it  shall  be  competent  to  the  defendant 
to  plead  that  such  libel  was  inserted  in  such  newspaper  or  other  periodical  pub- 
lication without  actual  malice,  and  without  gross  negligence,  and  that  before 
the  commencement  of  the  action,  or  at  the  earliest  opportunity  afterwards,  he 
inserted  in  such  newspaper  or  other  periodical  publication  a  full  apology  for  the 
said  libel,  or,  if  the  newspaper  or  periodical  publication  in  which  the  said  libel 
appeared  should  be  ordinarily  published  at  intervals  exceeding  one  week,  had 
offered  to  publish  the  said  apology  in  any  newspaper  or  periodical  publication 
to  be  selected  by  the  plaintiff  in  such  action.,  and  that  every  such  defendant  shall, 
upon  filing  such  plea  be  at  liberty  to  pay  into  court  a  sum  of  money  by  way  of 
amends  for  the  injury  sustained  by  the  publication,  of  such  libel,  and  such  payment 
into  court  shall  be  of  the  same  effect  and  be  available  in  the  sum:'  manner  and  to  the 
same,  extent,  and  he  subject  to  the  same  rub*  and  regulations  asto  payment  of  costs 
am!  the  form  of  pleading,  crept  so  far  as  regards  the  pleading  of  the  additional 
facts  hereinbefore  required  to  be  pleaded  by  such  defendant,  as  if  actions  for  libel 
had  not  been  excepted  from  the  personal  actions  in  which  it  is  lawful  to  pay  money 
into  court  under  an  act  pass,  d  in  the  session  of  Parliament  held  in  the  fou rth  year 
of  his  late  Majesty,  intituled  "  An  Act  for  the  further  amendment  of  tin  law,  and 
the  better  ad va  ne, '  no  nt  of  justice,"  and  that  to  such  plea  to  such  action  it  shall  be 
competent  to  the  plaintiff  to  reply  generally  denying  the  whole  of  such  plea. 

See  ante,  pp.  322,  541,  544,  577. 

3.  And  be  it  enacted,  that  if  any  person  shall  publish  or  threaten  to  publish 
any  libel  upon  any  other  person,  or  shall  directly  or  indirectly  threaten  to  print 
Or  publish  or  shall  directly  or  indirectly  propose  to  abstain  from  printing  or 
publishing,  or  shall  directly  or  indirectly  offer  to  prevent  the  printing  or  pub- 
lishing, of  any  matter  or  thing  touching  any  other  person,  with  intent  to  extort 
any  money  or  security  for  money,  or  any  valuable  thing  from  such  or  any  other 
person,  or  with  intent  to  induce  any  person  to  confer  or  procure  for  any  person 
any  appointment  or  office  of  profit  or  trust,  every  such  offender,  on  being  con- 
victed thereof,  shall  be  liable  to  be  imprisoned,  with  or  without  hard  labour  in 
the  common  gaol  or  house  of  correction,  for  any  term  not  exceeding  three  years: 
Provided  always,  that  nothing  herein  contained  shall  in  any  manner  alter^  or 
affect  any  law  now  in  force  in  respect  of  the  sending  or  delivery  of  threatening 
letters  or  writings. 

See  ante,  p.  426. 
5.  And  be   it  enacted,  that  if  any  person  shall  maliciously  publish  any  da- 

(.638) 


STATUTES.  567 

famatory  libel,  knowing  the  same  to  be  false,  every  such  person,  being  convicted 
thereof ,  shall  be  liable  to  be  imprisoned  in  the  common  gaol  <>r  house  of  correc 

lion  for  any  term  not  exceeding  two  years,  and  to  pay  such  tine  as  the  court 
shall  award. 

Bee  ante,  pp.  426,  601. 

[-'TIS]  .I.  And  he  it  enacted,  that  if  any  person  shall  maliciously  publish  any 
defamatory  libel,  every  such  person,  being  convicted  thereof,  shall  be  liable  to 
tine  or  imprisonment,  or  both,  as  the  court  may  award,  such  imprisonment  not 
to  exceed  the  term  of  one  year. 

See  ante,  pp.  38o,  426,  438. 

6.  And  be  it  enacted,  that  on  the  trial  of  any  indictment  or  information  for  a 
defamatory  libel,  the  defendant  having  pleaded  such  plea  as  hereinafter  men- 
tioned, the  truth  of  the  matters  charged  may  be  inquired  into,  but  shall  not 
amount  to  a  defence,  unless  it  was  for  the  public  benefit  that  the  said  matters 
charged  should  be  published,  and  that  to  entitle  the  defendant  to  give  evidence 
of  the  truth  of  such  matters  charged  as  a  defence  to  such  indictment  or  infor- 
mation, it,  shall  be  necessary  for  the  defendant,  inpleadingto  the  said  indictment 
or  information,  to  allege  the  truth  of  the  said  matters  charged  in  the  manner 
now  required  in  pleading  a  justification  to  an  action  for  defamation,  and  further 
to  allege  that  it  was  for  the  public  benefit  that  the  said  matters  charged  should 
be  published,  and  the  particular  fact  or  facts  by  reason  whereof  it  was  for  the 
public  benefit  that  the  said  matters  charged  should  be  published,  to  which  plea 
the  prosecutor  shall  be  at  liberty  to  reply  generally,  denying  the  whole  thereof; 
and  that  if  after  such  plea  the  defendant  shall  be  convicted  on  such  indictment 
or  information,  it  shall  be  competent  to  the  court,  in  pronouncing  sentence,  to 
consider  whether  the  guilt  of  the  defendant  is  aggravated  or  mitigated  by  the 
said  plea,  and  by  the  evidence  given  to  prove  or  to  disprove  the  same  :  Provided 
always,  that  the  truth  of  the  matters  charged  in  the  alleged  libel  complained  of 
by  such  indictment  or  information  shall  in  no  case  be  inquired  into  without 
such  plea  of  justification  :  Provided  also,  that  in  addition  to  such  pica  it  shall 
be  competent  to  the  defendant  to  plead  a  plea  of  not  guilty  :  Provided  also  that 
nothing  in  this  Act  contained  shall  take  away  or  prejudice  any  defence  under 
the  plea  of  not  guilty,  which  it  is  now  competent  to  the  defendant  to  make 
under  such  plea  to  any  action  or  indictment,  or  information,  for  defamatory 
words  or  libel. 

See  ante,  pp.  437,  596,  608. 

7.  And  be  it  enacted,  that  whensoever,  upon  the  trial  of  any  indictment  or 
information  for  the  publication  of  a  libel,  under  the  plea  of  not  guilty,  evidence 
shall  have  been  given  which  shall  establish  a  presumptive  case  of  publication 
against  the  defendant  by  the  act  of  any  other  person  by  his  authority,  it  shall 
he  competent  to  such  defendant  to  prove  that  such  publication  was  made 
without  his  authority,  consent  or  knowledge,  and  that  the  said  publication  did 
not  arise  from  want  of  due  care  or  caution  on  his  part. 

See  ante,  pp.  414,  433—436,  602. 

8.  And  he  it  enacted,  that  in  the  case  of  any  indictment  or  information  by  a 
private  prosecutor  for  the  publication  of  any  defamatory  libel,  if  judgment  shall 
he  given  for  the  defendant,  he  shall  be  entitled  to  recover  from  the  prosecutor 
the'eosts  sustained  by  the  said  defendant  by  reason  of  such  indictment  or  infor- 
mation; and  that  upon  a  special  plea  of  justification  to  such  indictment  or 
information,  if  the  issue  be  found  for  the  prosecutor,  he  shall  be  entitled  to 
such  plea,  such  costs  so  to  be  recovered  by  the  defendant  or  prosecutor  respec- 
tively to  be  taxed  by  the  proper  officer  of  the  court  before  which  the  said  indict- 
ment or  information  is  tried. 

See  ante,  pp.  609,  614. 
[*719]  9.  xVnd  be  it  enacted,  that  wherever  throughout  this  Act,  in  describing 
the  plaintiff  or  the  defendant,  or  the  party  affected  or  intended  to  be  affected  by 
the  offence,  words  are  used  importing  the  singular  number  or  the  masculine 
gender  only,  yet  they  shall  be  understood  to  include  several  persons  as  well  as 
one  person,  and  females  as  well  as  males,  unless  when  the  nature  of  the  provi- 
sion or  the  context  of  the  Act  shall  exclude  such  construction. 

10 nothing  in  this  Act  contained  shall  extend  to  Scotland. 

[N.B.— The  words  in  italics, "in  s.  2,  were  repealed  by  the  Civil  Procedure 

(639) 


568  APPENDIX   D. 

Acts  Repeal  Act,  1879,  42  &43  Vict.  c.  59,  Schedule,  Part  II.,  as  to  the  Supreme 
Court  of  Judicature  in  England  ;  and  generally  throughout  England  by  the 
46  &  47  Vict.  c.  49,  s.  4.] 


8  &  9  VICT.  c.  75. 


An  Act  to  amend  an  Act  passed  in  the  Session  of  Parliament  held  in  the  Sixth 
and  Seventh  Tears  of  the  reign  of  her  present  Majesty,  intituled  "  An  Act  to 
amend  the  Law  respecting  Defamatory  Words  and  Libel."  [31st  July,  1845.] 

Whereas  by  an  Act  passed  in  the  session  of  Parliament  held  in  the  sixth 
and  seventh  years  of  the  reign  of  her  present  majesty,  intituled  "An  Act  to 
aniend  the  law  respecting  defamatory  words  and  libel,"  it  is,  amongst  other 
thi igs  enacted  and  provided,  that  the  defendant  in  an  action  for  a  libel  con- 
tained in  any  public  newspaper  or  other  periodical  publication  may  plead  cer- 
tain matters  therein  mentioned,  and  may  upon  filing  such  plea  be  at  liberty  to 
pay  into  court  a  sum  of  money  by  way  of  amends  for  the  injury  sustained  by 
the  publication  of  such  libel,  and  it  is  thereby  further  enacted,  that  such  pay- 
ment into  court  shall  be  of  the  same  effect,  and  be  available  in  the  same  manner 
and  to  the  same  extent,  and  be  subject  to  the  same  rules  and  regulations  as  to 
payment  of  costs  and  the  form  of  pleading,  except  so  far  as  regards  the  plead- 
ing of  the  additional  facts  hereinbefore  required  to  be  pleaded  by  such  defen- 
dant, as  if  action  for  libel  had  not  been  expected  from  the  personal  actions  in 
which  it  is  lawful  to  pay  money  into  court  under  an  Act  passed  in  the  session 
of  Parliament  held  in  the  fourth  year  of  his  late  Majesty,  intituled  "  An  Act 
for  the  further  amendment  of  the  law  and  the  better  advancement  of  justice." 
And  whereas  the  said  Act  of  the  fourth  year  of  the  reign  of  his  late  Majesty 
relates  only  to  proceedings  in  the  Superior  Courts  in  England,  but  by  an  Act 
passed  in  the  session  of  Parliament  held  in  the  third  and  fourth  years  of  the 
reign  of  her  present  Majesty,  intituled  "  An  Act  for  abolishing  arrest  on  mesne 
process  in  civil  actions,  except  in  certain  cases,  for  extending  the  remedies  of 
creditors  against  the  property  of  debtors,  and  for  the  further  advancement  of 
justice,  in  Ireland,"  a  like  provision  is  made  for  payment  of  money  into  court 
in  all  personal  actions  pending  in  any  of  the  Superior  Courts  in  Ireland  as  is 
contained  in  the  said  Act  of  the  fourth  year  of  the  reign  of  his  late  Majesty  in 
regard  to  actions  pending  in  the  Superior  Courts  in  England,  with  a  like  excep- 
tion of  actions  for  libel,  and  it  is  expedient  to  prevent  any  doubts  as  to  the 
application  of  the  said  recited  Act  of  the  sixth  and  seventh  years  of  the  reign  of 
her  present  Majesty  to  actions  pending  in  the  Superior  Courts  in  Ireland  which 
may  be  created' by  reason  of  the  omission  of  a  reference  in  the  last-mentioned 
Act  to  the  [*720]  said  Act  of  the  third  and  fourth  years  of  the  reign  of  her  pres- 
ent Majesty  :  Be  it  therefore  enacted  and  declared  by  the  Queen's  most  excellent 
Majesty,  by  and  with  the  advice  and  consent  of  the  lords  spiritual  and  temporal, 
and  commons,  in  this  present  parliament  assembled,  and  by  the  authority  of  the 
same,  that  when  in  any  action  pending  in  the  Superior  Courts  of  Ireland  for  a 
libel  contained  in  any  public  newspaper  or  other  periodical  publication  the 
defendant  shall  plead  the  matters  allowed  to  be  pleaded  by  the  said  first-men- 
tioned Act,  and  shall  on  filing  such  plea  pay  money  into  court  as  provided  by 
such  Act,  such  payment  into  court  shall  be  of  the  same  effect,  and  be  available 
in  the  same  manner  and  to  the  same  extent,  and  be  subject  to  the  same  rules  and 
regulations  now  in  force  or  hereafter  to  be  made  as  to  payment  of  costs  and  the 
form  of  pleading  except  so  far  as  regards  the  pleading  of  the  additional  facts  so 
required  to  be  pleaded  by  such  defendant,  as  if  actions  for  libel  had  not  been 
excepted  from  the  personal  actions  in  which  it  is  lawful  to  pay  money  into 
court  under  the  said  recited  Act  of  the  third  and  fourth  years  of  the  reign  of 
her  present  Majesty, 

2.  And  be  it  declared  and  enacted,  that  it  shall  not  be  competent  to  any 
defendant  in  such  action,  whether  in  England  or  in  Ireland,  to  tile  any  such 
plea,  without  at  the  same  time  making  a  payment  of  money  into  court  by  way 
of  amends  as  prodded  by  the  said  Act,  but  every  such  plea  so  filed  without  pay- 

(<i40) 


STATUTES.  569 

ment  of  money  into  court  shall  be  deemed  a  nullity,  and  may  be  treated  as  such 
by  the  plaintiff  in  the  action. 

[N  B. — The  words  in  italics  in  sect.  2  were  repealed  by  the  Civil  Procedure 
Acts  Repeal  Act,  1879,  42  &  43  Vict,  c  59,  Schedule,'  Part  II.,  as  to  the 
Superior  Court  of  Judicature  in  England  ;  and  generally  throughout  England 
by  the  46  &  47  Vict.  c.49,s.  4.  The  statute  3  & 4  Vict.  c.  105,  s.  46,  referred  to  in 
sect.  1,  is  now  repealed  by  the  Slat.  Law  Rev.  Act,  1875.  See  theC.  L.  P.  Act, 
1852  (15  &  16  Vict.  c.  76),  s.  70  ;  and  for  Ireland,  16  &  17  Vict.  c.  113,  s.  77  ; 
ante,  pp.  323,  542] 


9  &  10  VICT.  c.  33. 


[July  21th,  1846.] 
Sect.  1.  It  shall  not  be  lawful  for  any  person  or  persons  to  commence,  pros- 
ecute, enter,  or  file,  or  cause  or  procure  to  be  commenced,  prosecuted,  entered 
or  filed,  any  action,  bill,  plaint,  or  information  in  any  of  her  Majesty's  courts, 
or  before  any  justice  or  justices  of  the  peace,  against  any  person  or  persons  for 
the  discovery  of  any  tine  which  may  hereafter  be  incurred  under  the  provisions  of 
the  Act  of  the  thirty-ninth  year  of  King  George  the  Third,  chapter  seventy-nine, 
set  out  in  this  Act,  unless  the  same  be  commenced,  prosecuted,  entered,  or  filed 
in  the  name  of  her  Majesty's  Attorney-General  or  Solicitor-General  in  England 
or  her  Majesty's  Advocate  in  Scotland,  and  every  action,  bill,  plaint,  or  infor- 
mation which  shall  be  commenced,  prosecuted,  entered,  or  filed  in  the  name  or 
names  of  any  other  person  or  persons  than  is  in  that  behalf  before  mentioned, 
and  every  proceeding  thereupon  bad,  shall  be  null  and  void  to  all  intents  and 
purposes. 

[N.B.— This  section  is  re-enacted  by  the  32  &  33  Vict.  c.  24.  Schedule  2.] 


[*721]  11  &  12  VICT.  c.  12. 

An  Act  for  the  better  Security  of  the  Crown  and  Government  of  the   United 
Kingdom.  [April  22nd,  1848.] 

Sect.  3.  If  any  person  whatsoever  after  the  passing  of  this  Act  shall,  within 
the  United  Kingdom  or  without,  compass,  imagine,  invent,  devise,  or  intend  to 
deprive  or  depose  our  most  gracious  lady  the  Queen,  her  heirs  or  successors, 
from  the  style,  honour,  or  royal  name  of  the  imperial  crown  of  the  United 
Kingdom,  or  of  any  other  of  her  Majesty's  dominions  and  countries,  or  to  levy 
war  against  her  Majesty,  her  heirs  or  successors,  within  any  part  of  the  United 
Kingdom,  in  order  by  force  or  constraint  to  compel  her  or  them  to  change  her 
on  their  measures  or  counsels,  or  in  order  to  put  any  force  or  constraint  upon 
or  in  order  to  intimidate  or  overawe  both  Houses  or  either  House_  of  Parlia- 
ment, or  to  move  or  stir  any  foreigner  or  stranger  with  force  to  invade  the 
United  Kingdom  or  any  other  her  Majesty's  dominions  or  countries  under  the 
obeisance  of  her  Majesty,  her  heirs  or  successors,  and  such  compassings,  imag- 
inations, inventions,  devices,  or  intentions,  or  any  of  them,  shall  express,  utter, 
or  declare,  by  publishing  any  printing  or  writing  or  by  open  and  advised  speak- 
ing] or  by  any  overt  act  or  deed,  every  person  so  offending  shall  be  guilty  of 
feiony,  and  being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the 
court,  to  be  transported  beyond  the  seas  for  the  term  of  his  or  her  natural  life, 
or  for  any  term  not  less  than  seven  years,  or  to  be  imprisoned  for  any  term  not 
exceeding  two  years,  with  or  without  hard  labour,  as  the  court  shall  direct. 
[N.B.— The  words  in  italics  were  not  in  the  36  Geo.  III.  c.  7.] 


COMMON  LAW  PROCEDURE  ACT. 

15  &  16  VICT.  c.  76. 

[June  BOth,  1852.] 
Sect.  61.  In  actions  of  libel  and  slander  the  plaintiff  shall  be  at  liberty  to  aver 

(G41) 


570  APPENDIX    D. 

that  the  words  or  matter  complained  of  were  used  in  a  defamatory  sense,  specifying 
such  defamatory  sense  without  any  prefatory  averment  to  show  how  such  words  or 
matter  were  used  in  that  sense;  and  such  a/cerment  .slut  1 1  be  put  in  issue  by  the 
denial  of  the  alleged  libel  or  slander 'j  and  where  the  words  or  matter  set  forth, 
with  or  without  the  alleged  meaning,  show  a  cause  of  action,  the  declaration  shall 
be  sufflcu  at. 

[Repealed  by  statute  46  &  47  Vict.  c.  49  ;  but  the  rule  established  by  it  still 
remains  in  full  force  (sect.  5  (b).)    See  ante,  pp.  120,  129,  and  581.] 


[*722]  18&19  VICT.  c.  41. 

An  Act  for  abolishing  the  Jurisdiction  of  the  Ecclesiastical  Courts  of  England  and 
Wales  in  suits  for  Defamation. 

[28th  June,  1855.1 
Whereas  the  jurisdiction  of  the  ecclesiastical  courts  in  suits  for  defamation 
has  ceased  to  be  the  means  of  enforcing  the  spiritual  discipline  of  the  church, 
and  has  become  grievous  and  oppressive  to  the  subjects  of  this  realm  :  Be  it 
therefore  enacted  by  the  Queen's  most  excellent  Majesty,  by  and  with  the 
advice  and  consent  of  the  lords  spiritual  and  temporal,  and  commons,  in  this 
present  Parliament  assembled,  and  by  the  authority  of  the  same,  as  follows  :— 
_  1.  From  and  after  the  passing  of  this  Act  it  shall  not  be  lawful  for  any  eccle- 
siastical court  in  England  or  Wales  to  entertain  or  adjudicate  upon  any  suit  for 
or  cause  of  defamation,  any  statute,  law,  canon,  custom,  or  usage,  to  the  con- 
trary notwithstanding. 


20  &  21  VICT.  c.  83. 


An  Act  for  more  effectually  preventing  the  Sale  of  Obscene  Books,  Pictures,  Prints, 

and  oilier  Articles.  ■ 

[2r>th  August .  1857.] 

Whereas  it  is  expedient  to  give  additional  powers  for  the  suppression  of  the 
trade  in  obscene  books,  prints,  drawings,  and  other  obscene  articles  :  Be  it 
enacted  by  the  Queen's  most  excellent  Majesty,  by  and  with  the  advice  and 
consent  of  the  lords  spiritual  and  temporal,  and  commons,  in  this  present  Par- 
liament assembled,  and  by  the  authority  of  the  same,  as  follows  : 

1.  It  shall  be  lawful  for  any  metropolitan  police  magistrate  or  other  stipen- 
diary magistrate,  or  for  any  two  justices  of  the  peace,  upon  complaint  made 
before  him  or  them  upon  oath  that  the  complainant  has  reason  to  believe,  and 
docs  believe,  that  any  obscene  books,  papers,  writings,  prints,  pictures,  draw- 
ings, or  other  representations  are  kept  in  any  house,  shop,  room  or  other  place 
within  the  limits  of  the  jurisdiction  of  any  such  magistrate  or  justices,  for  the 
purpose  of  sale  or  distribution,  exhibition  for  purposes  of  gain,  lending  upon 
lure,  or  being  otherwise  published  for  purposes  of  gain,  which  complainant 
shall  also  state  upon  oath  that  one  or  more  articles  of  the  like  character  have 
been  sold,  distributed,  exhibited,  lent,  or  otherwise  published  as  aforesaid,  at  or 
in  connection  with  such  place,  so  as  to  satisfy  such  magistrate  or  justices  that 
the  belief  of  the  said  complainant  is  well  founded,  and  upon  such  magistrate  or 
justices  being  also  satisfied  that  any  of  such  articles  so  kept  for  any  of  the  pur- 
poses aforesaid  are  of  such  a  character  and  description  that  the  publication  of 
them  would  be  a  misdemeanour,  and  proper  to  be  prosecuted  as  such,  to  give 
authority  by  special  warrant  to  any  constable  or  police  officer  into  such  house, 
shop,  room,  or  other  place,  with  such  assistance  as  may  be  necessary,  to  enter 
in  the  daytime,  and,  if  necessary,  to  use  force,  by  breaking  open  doors  or  other- 
wise, and  to  search  for  and  seize  all  such  books,  papers,  writings,  prints, 
pictures,  drawings,  or  other  representations  as  aforesaid  found  in  such  house, 
[*  723]  shop,  room,  or  other  place,  and  to  carry  all  the  articles  so  seized  before 
the  magistrate  or  justices  issuing  the  said  warrant,  or  some  other  magistrate  or 
justices  exercising  the  same  jurisdiction  ;  and  such  magistrate  or  justices  shall 
thereupon  issue  a  summons  calling  upon  the  occupier  of  the  house  or  other 
place  which  may  have  been  so  entered  by  virtue  of  the  saiil  warrant  to  appear 
within  seven  days   before  such  police  or  stipendiary  magistrate  or  any  two 

(642j 


KTATITKS. 


6  71 


justices  in  petty  sessions  for  the  district,  to  show  cause  why  the  articles  BO 
seized  should  not  be  destroyed  ;  and  if  such  occupier  or  some  other  person 
claiming  to  be  the  owner  of  the  said  articles  shall  no1  appear -within  the  time 
aforesaid,  or  shall  appear,  and  such  magistrate  and  justices  shall  be  satisfied 

that  such  articles  or  any  of  them  are  of  the  character  slated  in  the  warrant,  and 
thai  such  or  any  of    them    have    been  kept  for  any  of  the  purposes  aforesaid,  it 

shall  be  lawful  for  the  said  magistrate  or  justices,  and  he  or  they  are  hereby 

required,  to  order  the  articles  so  seized,  except  such  of  them  as  he  or  they  may 
consider  necessary  to  be  preserved   as  evidence   in  some  further  proceeding,  to 

be  destroyed  at  the  expiration  of  the  time  hereinafter  allowed  for  lodging  an 
appeal,  unless  notice  of  appeal  as  hereinafter  mentioned  be  given,  and  such 
articles  shall  he  in  the  meantime  impounded  ;  and  if  such  magistrate  or  justices 
shall  be  satisfied  that  the  articles  seized  are  not  of  the  character  stated  in  the 
warrant,  or  have  not  been  kept  for  any  of  the  purposes  aforesaid,  he  or  they 
shall  forthwith  direct  them  to  he  restored  to  the  occupier  of  the  house  or  other 
place  ill  which  they  were  seized. 

2.  No  plaintiff  shall  recover  in  any  action  for  any  irregularity,  trespass,  or 
other  wrongful  proceeding  made  or  committed  in  the  execution  of  this  Act,  or 
in,  under,  or  by  virtue  of  any  authority  hereby  given,  if  tender  of  sufficient 
amends  shall  have  been  made' by  or  on  behalf  01  the  parly  who  shall  have  com 

mitted  such  irregularity,  trespass,  or  other  wrongful  proceeding,  before  such 
action  brought  ;  and  in  case  no  tender  shall  have  been  made,  it  shall  be  lawful 
for  the  defendant  in  any  such  action,  by  leave  of  the  court  where  such  action 
shall  depend,  at  any  time  before  issue  'joined,  to  pay  into  court  such  sum  of 
money  as  he  shall  think  fit  :  whereupon  such  proceeding,  order,  and  adjudica- 
tion shall  be  had  and  made  in  and  by  such  court  as  in  other  action  where 
defendants  are  allowed  to  pay  money  into  court. 

3.  No  action,  suit,  or  information,  or  any  other  proceeding,  of  what  nature 
soever,  shall  be  brought  against  any  person  for  anything  done  or  omitted  to  be 
done  in  pursuance  of  this  Act,  or  in  the  execution  of  the  authorities  under  this 
Act,  unless  notice  in  writing  shall  be  given  by  the  party  intending  to  prosecute 
such  action,  suit,  information,  or  other  proceeding,  to  the  intended  defendant, 
one  calendar  month  at  least  before  prosecuting  the  same,  nor  unless  such  action, 
suit,  information,  or  other  proceeding  shall  be  brought  or  commenced  within 
three  calendar  months  next  after  the  act  or  omission  complained  of.  or.  in  case 
there  shall  be  a  continuation  of  damage,  then  within  three  calendar  months 
next  after  the  doing  such  damage  shall  have  ceased. 

4.  Any  person  aggrieved  by  any  act  or  determination  of  such  magistrate  or 
justice  iii  or  concerning  the  execution  of  this  Act,  may  appeal  to  the  next  gen- 
eral or  quarter  sessions  for  the  county,  riding,  division,  city,  borough,  or 
place  in  and  for  which  such  magistrate  'or  justices  shall  have  so  acted,  giving 
to  the  magistrate  or  justices  of  the  peace,  whose  act  or  determination  shall  lie 
appealed  against,  notice  in  writing  of  such  appeal  and  of  the  grounds  thereof, 
within  seven  days  after  such  act  or  determination  and  before  the  next  general 
[*  724]  or  quarter  sessions,  and  entering  within  such  seven  days  into  a  recogni- 
zance, with  sufficient  surety,  before  a  justice  of  the  peace  for  the  county,  city, 
borough,  or  place  in  which  such  act  or  determination  shall  have  taken  place, 
personally  to  appear  and  prosecute  such  appeal,  and  to  abide  the  order  of  and 
pay  such  costs  as  shall  be  awarded  by  such  court  of  quarter  sessions  or  any 
adjournment  thereof;  and  the  court  at  such  general  or  quarter  sessions  shall 
hear  and  determine  the  matter  of  such  appeal,  and  shall  make  such  order 
therein  as  shall  to  the  said  court  seem  meet  ;  and  such  court,  upon  hearing  and 
finally  determining  such  appeal,  shall  and  may,  according  to  their  discretion, 
award  such  costs  to  the  party  appealing  or  appealed  against  as  they  shall  think 
proper  ;  and  if  such  appeal  lie  dismissed  or  decided  against  the  appellant  or  be 
not  prosecuted,  such  court  may  order  the  articles  seized  forthwith  to  be 
destroyed:  Provided  always,  that  it  shall  not  be  lawful  for  the  appellant  on 
the  hearing  of  any  such  appeal  to  go  into  or  give  evidence  of  any  other  grounds 
of  appeal  againsl  any  such  order,  act,  or  determination,  than  those  set  forth  in 
such  notice  of  appeal. 

5.  This  act  shall  not  extend  to  Scotland. 

See  ante,  p.  472. 
i043i 


572  APPENDIX    I). 

23  &  24  VICT.  c.  32. 

An  Act  to  abolish  the  Jurisdiction  of  the  Ecclesiastical  Courts  in  Ireland  in  cases 
of  Defamation,  &c.  [July  3rd,  I860.] 

[N.B.— The  portions  of  this  Act  which  refer  to  the  jurisdiction  of  the  Eccle- 
siastical Courts  in  Ireland  are  now  repealed  as  unnecessary  by  the  Stat.  Rev. 
Act,  1875,  38  &  39  Vict.  c.  66.  For  the  Ecclesiastical  Courts  themselves  are 
altogether  abolished  by  32  &  33  Vict.  c.  42,  s.  21  ;  and  on  January  1st,  1871, 
the  ecclesiastical  law  of  Ireland  ceased  to  exist  as  law.] 


BURIAL  LAWS  AMENDMENT  ACT,  1880. 

43  &  44  Vict.  c.  41. 

[September  1th,  1880.] 
Sect.  7.  All  burials  under  this  Act,  whether  with  or  without  a  religious 
service,  shall  be  conducted  in  a  decent  and  orderly  manner  ;  and  every  person 
guilty  of  any  riotous,  violent,  or  indecent  behaviour  at  any  burial  under  this 
Act,  or  wilfully  obstructing  such  burial  or  any  such  service  as  aforesaid  thereat, 
or  who  shall,  in  any  such  churchyard  or  graveyard  as  aforesaid,  deliver  any 
address,  not  being  part  of  or  incidental  to  a  religious  service  permitted  by  this 
Act,  and  not  otherwise  permitted  by  any  lawful  authority,  or  who  shall,  under 
colour  of  any  religious  services  or  otherwise,  in  any  such  churchyard  or  grave- 
yard, wilfully  endeavour  to  bring  into  contempt  or  obloquy  the  Christian  relig- 
ion, or  the  belief  or  worship  of  any  church  or  denomination  of  Christians,  or 
the  members  or  any  minister  of  any  such  church  or  denomination,  or  any  other 
person,  shall  be  guilty  of  a  misdemeanour. 


[*  725]      NEWSPAPER      LIBEL      AND     REGISTRATION 

ACT,  1881. 

44  &  45  VICT.  c.  00. 

(See  Chapter  XIII.,  ante,  pp.  374—393.) 

An  Act  to  amend  tlie  Law  of  Newspaper  Libel,  and  to  provide  for  the  Registration 
of  Newspaper  Proprietors.  \2Tith  August,  1881.] 

Whereas  it  is  expedient  to  amend  the  law  affecting  civil  actions  and 
criminal  prosecutions  for  newspaper  libel  ; 

And  whereas  it  is  also  expedient  to  provide  for  the  registration  of  newspaper 
proprietors  : 

Be  it  enacted  by  the  Queen's  most  excellent  Majesty,  by  and  with  the  advice 
and  consent  of  tlie  lords  spiritual  and  temporal,  and  commons,  in  this  present 
Parliament  assembled,  and  by  the  authority  of  the  same,  as  follows  : 

1.  In  the  construction  of  this  Act,  unless  there  is  anything  in  the  subject  or 
context  repugnant  thereto,  the  several  words  and  phrases  hereinafter  mentioned 
shall  have  and  include  the  meanings  following  ;  (that  is  to  say,) 

The  word  "  registrar  "  shall  mean  in  England  the  registrar  for  the  time  being 
of  joint  stock  companies,  or  such  person  as  the  Board  of  Trade  may  for  the 
time  being  authorise  in  that  behalf,  and  in  Ireland  the  assistant  registrar  for 
the  time  being  of  joint  stock  companies  for  Ireland,  or  such  person  as  the 
Board  of  Trade  may  for  the  time  being  authorise  in  that  behalf. 

The  phrase  "  registry  office  "  shall  mean  the  principal  office  for  the  time  being 
of  the  registrar  in  England  or  Ireland,  as  the  case  may  be,  or  such  other  office 
as  the  Board  of  Trade  may  from  time  to  time  appoint. 

The  wTord  "  newspaper  "  shall  mean  any  paper  containing  public  news  m- 

(644) 


STATUTKS.  573 

telligence  or  occurrences  or  any  remarks  or  observations  therein  [Qy.  thereon] 
printed  for  sale  and  published  in  England  or  Ireland  periodically  or  in  parts  or 

numbers  at  intervals  not  exceeding  twenty-six  days  between  the  publication  of 
any  two  such  papers,   pails  or  numbers. 

Also  any  paper  printed  in  order  to  be  dispersed  and  made  public  weekly  or 
oftener,  or  at  intervals  not  exceeding  twenty-six  days,  containing  only  or 
principally  advertisements. 

The  word  "  occupation,"  when  applied  to  any  person,  shall  mean  his  trade 
or  following,  and  it' none,  then  his  rank  or  usual  title,  as  esquire,  gentleman. 

The  phrase  "  place  of  residence  "  shall  include  the  street,  square,  or  place 
where  the  person  to  whom  it  refers  shall  reside,  and  the  number  (if  any)  or 
other  designation  of  the  house  in  which  he  shall  so  reside. 

The  word  "  proprietor  "shall  mean  and  include  as  well  the  sole  proprietor  of 
any  newspaper,  as  also  in  the  case  of  a  divided  proprietorship  the  persons  who, 
as  partners  or  otherwise,  represent  and  are  responsible  for  any  share  or  interesi 
in  the  newspaper  as  between  themselves  and  the  persons  in  like  manner  repre- 
senting or  responsible  for  the  other  shares  or  interests  therein,  and  no  other 
person. 

2.  Any  report  published  in  any  newspaper  of  the  proceedings  of  a  public 
meeting  shall  be  privileged,  if  such  meeting  was  lawfully  convened  for  a  lawful 
purpose  and  opened  to  the  public,  and  if  such  report  was  fair  and  accurate, 
and  published  without  malice,  and  if  the  publication  of  the  matter  complained 
of  was  [*  726]  for  the  public  benefit ;  provided  always,  that  the  protection 
intended  to  be  afforded  by  this  section  shall  not  be  available  as  a  defence  in 
any  proceeding,  if  the  plaintiff  or  prosecutor  can  show  that  the  defendant  has 
refused  to  insert  in  the  newspaper  in  which  the  report  containing  the  matter 
complained  of  appeared  a  reasonable  letter  or  statement  of  explanation  or  con- 
tradiction by  or  on  behalf  of  such  plaintiff  or  prosecutor. 

See  note,  ante,  pp.  378—383. 

3.  No  criminal  prosecution  shall  be  commenced  against  any  proprietor,  pub- 
lisher, editor,  or  any  person  responsible  for  the  publication  of  a  newspaper  for 
any  libel  published  therein,  without  the  written  hat  or  allowance  of  the  Director 
of  Public  Prosecutions  in  England  or  her  Majesty's  Attorney-General  in  Ireland 
being  first  had  and  obtained. 

See  ante,  pp.  384,  589,  610. 

4.  A  court  of  summary  jurisdiction,  upon  the  hearing  of  a  charge  against  a 
proprietor,  publisher,  or  editor,  or  any  person  responsible  for  the  publication  of 
a  newspaper,  for  a  libel  published  therein,  may  receive  evidence  as  to  the  pub- 
lication being  for  the  public  benefit,  and  as  to  the  matters  charged  in  the  libel 
being  true,  and  as  to  the  report  being  fair  and  accurate,  and  published  without 
malice,  and  as  to  any  matter  which  under  this  or  any  other  Act,  or  otherwise, 
might  be  given  in  evidence  by  way  of  defence  by  the  person  charged  on  his 
trial  on  indictment,  and  the  court,  if  of  opinion  after  hearing  such  evidence 
that  there  is  a  strong  or  probable  presumption  that  the  jury  on  the  trial  would 
acquit  the  person  charged,  may  dismiss  the  case. 

See  ante,  pp.  385,  590. 

5.  If  a  court  of  summary  jurisdiction  upon  the  hearing  of  a  charge  against  a 
proprietor,  publisher,  editor,  or  any  person  responsible  for  the  publication  of  a 
newspaper  for  a  libel  published  therein  is  of  opinion  that  though  the  person 
charged  is  shown  to  have  been  guilty  the  libel  was  of  a  trivial  character,  and 
that  the  offence  m?.j  be  adequately  punished  by  virtue  of  the  powers  of  this 
section,  the  court  shall  cause  the  charge  to  be  reduced  into  writing  and  read  to 
the  person  charged,  and  then  address  a  question  to  him  to  the  following  effect : 
"  Do  you  desire  to  be  tried  by  a  jury  or  do  you  consent  to  the  case  being  dealt 
with  summarily  ?  "  and,  if  such  person  assents  to  the  case  being  dealt  with 
summarily,  the  court  may  summarily  convict  him  and  adjudge  him  to  pay  a 
fine  not  exceeding  fifty  pounds. 

Section  twenty-seven  of  the  Summary  Jurisdiction  Act,  1879,  shall,  so  far  as 
is  consistent  with  the  tenor  thereof,  apply  to  every  such  proceeding  as  if  it  were 
herein  enacted  and  extended  to  Ireland,  and  as  if  the  Summary  Jurisdiction 
Acts  were  therein  referred  to  instead  of  the  Summary  Jurisdiction  Act,  1848. 
See  ante,  pp.  386,  592. 
.  (045) 


574  APPENDIX    D. 

6.  Every  libel  or  alleged  libel,  and  every  offence  under  this  Act,  shall  be 
deemed  to  be  an  offence  within  and  subject  to  the  provisions  of  the  Act,  el  the 
session  of  the  twenty-second  and  twenty  third  years  of  the  reign  of  Her  present, 
Ma  jest  v,  chapter  seventeen,  intituled  "  An  Act  to  prevent  vexatious  indictments 
for  certain  misdemeanours." 

*See  ante,  pp.  387,  589,  595. 

7.  Where,  in  the  opinion  of  the  Board  of  Trade,  inconvenience  would  arise 
or  be  caused  in  any  case  from  the  registry  of  the  names  of  all  the  proprietors  of 
the  newspaper  (either  owing  to  minority,  coverture,  absence  from  the  United 
Kingdom,  minute  subdivision  of  shares,  or  other  special  circumstances),  it  shall 
[*  727]  be  lawful  for  the  Board  of  Trade  to  authorise  the  registration  of  such 
newspaper  in  the  name  or  names  of  some  one  or  more  responsible  "  representa- 
tive proprietors." 

[This  section  should  have  come  after  sect.  10.     See  ante,  p.  387.] 

8.  A  register  of  the  proprietors  of  newspapers  as  denned  by  the  Act  shall  be 
established  under  the  superintendency  of  the  register. 

9.  It  shall  be  the  duty  of  the  printers  and  publishers  for  the  time  being  of 
every  newspaper  to  make  or  cause  to  be  made  to  the  Registry  Office  on  or  before 
the  thirty-first  of  July  one  thousand  eight  hundred  and  eighty-one,  and  there- 
after annually  in  the  month  of  July  in  every  year,  a  return  of  the  following 
particulars  according  to  Schedule  A.  hereunto  annexed  ;  that  is  to  say, 

(a.)  The  title  of  a  newspaper  : 

(b.)  The  names  of  all  the  proprietors  of  such  newspaper  together  with  their 
respective  occupations,  places  of  business  (if  any),  and  places  of  residence. 
[The  Act  did  not  come  into  force  till  August  27th,  1881.     See  ante,  pp.  388, 
389.]  .       M 

10.  If  within  the  further  period  of  one  month  after  the  time  hereinbefore 
appointed  for  the  making  of  any  return  as  to  any  newspaper  such  return  be  not 
made,  then  each  printer  and  publisher  of  such  newspaper  shall,  on  conviction 
thereof,  be  liable  to  a  penalty  not  exceeding  twenty  five  pounds,  and  also  to  be 
directed  by  a  summary  order  to  make  a  return  within  a  specified  time. 

11.  Any  party  to  a  transfer  or  transmission  of  or  dealing  with  any  share  of  or 
interest  in  any  newspaper  whereby  any  person  ceases  to  be  a  proprietor  or  any 
new  proprietor  is  introduced  may  at  any  time  make  or  cause  to  be  made  to  the 
registry  office  a  return  according  to  the  Schedule  B.  hereunto  annexed  and  con- 
taining the  particulars  therein  set  forth. 

See  ante,  pp.  389,  561. 

12.  If  any  person  shall  knowingly  and  wilfully  make  or  cause  to  be  made 
any  return  by  this  Act  required  or  permitted  to  be  made  in  which  shall  be  in- 
serted or  set  forth  the  name  of  any  person  as  a  proprietor  of  a  newspaper 
who  shall  not  be  a  proprietor  thereof,  or  in  which  there  shall  be  any  misrepre- 
sentation, or  from  which  there  shall  be  any  omission  in  respect  of  any  of  the 
particulars  by  this  Act  required  to  be  contained  therein,  whereby  such  return 
shall  be  misleading,  or  if  any  proprietor  of  a  newspaper  shall  knowingly  andj 
wilfully  permit  any  such  return  to  be  made  which  shall  be  misleading  as  to  any 
of  the  particulars  with  reference  to  his  own  name,  occupation,  place  of  business 
(if  any),  or  place  of  residence,  then  and  in  every  such  case  every  offender  being 
convicted  thereof  shall  be  liable  to  a  penalty  not  exceeding  one  hundred 
pounds. 

13.  It  shall  be  the  duty  of  the  registrar  and  he  is  hereby  required  forthwith  to 
register  every  return  made  in  conformity  with  the  provisions  of  this  Act  in  a 
book  to  be  kept  for  that  purpose  at  the  Registry  Office  and  called  "  the  register 
of  newspaper  proprietors,"  and  all  persons  shall  be  at  liberty  to  search  and 
inspect  the  said  book  from  time  to  time  during  the  hours  of  business  at  the 
Registry  Office,  and  any  person  may  require  a  copy  of  any  entry  in  or  an 
extract  from  the  book  to  be  certified  by  the  registrar  or  his  deputy  for  the  time 
being  or  under  the  official  seal  of  the  registrar. 

14.  There  shall  be  paid  in  respect  of  the  receipt  and  entry  of  returns  made  in 
conformity  with  the  provisions  of  this  Act,  and  for  the  inspection  of  the  regis- 
ter of  newspaper  proprietors,  and  for  certified  copies  of  any  entry  therein,  and 
in  respect  of  any  other  service  to  be  performed  by  the  registrar,  such  fees  (if  any) 
as  the  Board  of  Trade  with  the  approval  of  the  Treasury  may  direct  and  as  they 

t646) 


STATUTES. 


575 


[*  728]  sbal]  deem  requisite  to  defray  as  well  the  additional  expenses  of  the  Reg- 
istry Office  caused  by  the  provisions  of  this  Act,  as  also  the  further  remunera- 
tions and  salaries  (if  any)  of  the  registrar,  and  of  any  other  person  employed 
under  him  in  the  execution  of  this  Act,  and  such  fees  shall  he  dealt  with  as  the 
Treasury  may  direct. 

See  scale  of  fees,  ante,  p.  891. 

15.  Every  copy  of  an  entry  in  or  extract  from  the  register  of  newspaper  pro- 
pri  tors,  purporting  to  be' certified  by  the  registrar  or  his  deputy  for  the  time 

being,  or  under  the  official  seal  of  the  registrar,  shall  lie  received  as  conclusive 
evidence  of  the  contents  of  the  said  register  of  newspaper  proprietors,  so  tar  as 
the  same  appearin  such  copy  or  extract  without  proof  of  the  signature  thereto  or 
of  the  seal  of  office  affixed  thereto,  and  every  such  certified  copy  or  extract 
shall  in  all  proceedings,  civil  or  criminal,  lie  accepted  as  sufficient  prima, 
facie  evidence  of  all  the  matters  and  things  thereby  appearing,  unless  and 
until  the  contrary  thereof  be  shown. 

See  ante,  pp.  889,  553,  561. 

16.  All  penalties  under  this  Act  may  be  recovered  before  a  court  of  sum- 
mary jurisdiction  in  manner  provided  by  the  Summary  Jurisdiction  Acts. 

Summary  orders  under  this  Act  may  be  made  by  a  court  of  summary 
jurisdiction,  and  enforced  in  manner  provided  by  section  thirty-four  of  the 
Summary  Jurisdiction  Act,  1879  ;  and,  for  the  purpose  of  tins  Act,  that 
section  shall  be  deemed  to  apply  to  Ireland  in  the  same  manner  as  if  it 
were  re-enacted  in  this  Act. 

17.  The  expression  "a  court  of  summary  jurisdiction"  has  in  England 
the  meanings  assigned  to  it  by  the  Summary  Jurisdiction  Act,  1879  ; 
and  in  Ireland  means  any  justice  or  justices  of  the  peace,  stipendiary  or 
other  magistrate  or  magistrates,  having  jurisdiction  under  the  Summary 
Jurisdiction  Acts. 

The  expression  "Summary  Jurisdiction  Acts"  has  as  regards  England  the 
meanings  assigned  to  it  by  the  Summary  Jurisdiction  Act,  1879  ;  and  as 
regards  Ireland,  means  within  the  police  district  of  Dublin  metropolis  the  Acts 
regulating  the  powers  and  duties  of  justices  of  the  peace  for  such  district,  or  of 
the  police  of  that  district,  and  elsewhere  in  Ireland  the  Petty  Sessions  (Ireland) 
Act,  1851,  and  any  Act  amending  the  same. 

[These  definitions  should  have  formed  part  of  s.  1.] 

18.  The  provisions  as  to  the  registration  of  newspaper  proprietors  contained 
in  this  Act  shall  not  apply  to  the  case  of  any  newspaper  which  belongs  to  a 
joint  stock  company  duly  incorporated  under  and  subject  to  the  provisions  of 
the  Companies  Acts,  186*2  to  1879. 

19.  This  Act  sh  11  not  extend  to  Scotland. 

20.  This  Act  may  for  all  purposes  be  cited  as  the  Newpaper  Libel  and  Regis- 
tration Act,  1881. 


[*729]  THE  SCHEDULES  TO  WHICH  THIS  ACT  REFERS. 

Schedule  A. 
Return  made  pursuant  to  the  Newspaper  Libel  and  Registration  Act,  1881. 


Title  of  the  Newspaper. 


Names  of 

the 

Proprietors. 


Occupations 

of  the 
Proprietors. 


(647) 


Places       |    Places  of 
of  business  'Residence  of 
(if  any)  of  the]  the 

Proprietors.    Proprietors. 


5  76 


APPENDIX     I). 


Schedule  B. 

Return  made  pursuant  to  the  Newspaper  Libel  and  Registration  Act,  1881. 


Title  of 
Newspaper. 


Names  of 
Per  so  n  s 


who     cease'w  h  o 
to  be  Pro 
prietors. 


Names  of  | 
Persons  Occupation 


be 
come    Pro- 
prietors. 


of  new 
Proprietors 


Places  of 
business  (if 

any)  of  new 
Proprietors 


Places  of 
Res i d  e  nee 

of  new 
Proprietors 


(W) 


GENERAL  INDEX.  c*73,) 

*#*  The  figures  refer  to  the  *  pages  between  brackets  [*]. 


ABATEMENT  OF  ACTION,  396,  398,  403,  407. 

ABSOLUTE  PRIVILEGE,  184—196. 

(i.)  Parliamentary  proceedings,  185. 
(ii.)  Judicial  proceedings,  187. 

words  spoken  by  a  judge,  187. 

words  spoken  by  counsel,  189. 

words  spoken  by  a  witness,  190. 

words  in  affidavits,  &c,  191. 
(iii.)  Naval  and  military  affairs,  194. 
precedents  of  pleas  of,  643,  644. 

ABUSE, 

mere  general  words  of,  18,  108,  637. 

ACCESSORIES, 

to  the  publication  of  a  libel,  155,  595,  599. 

ACCIDENTAL  PUBLICATION, 

civil  liability  for,  5,  6,  155,  433,  638. 
criminal  liability  for,  432,  433. 

ACCOMPLICE,  155,  595,  599. 

may  prove  publication,  561. 

ACCORD  AND  SATISFACTION, 

plea  of,  540,  654. 

ACTIO  PERSONALIS  CUM  PERSONA  MORITUR,  407. 

ACTION, 

within  what  time,  520. 

and  in  what  Court,  518,  519,  588. 
letter  before,  517. 
costs  of,  365—373. 
notice  of,  518,  631,  723. 
considerations  before,  513. 
consolidation  of,  525. 
previous,  521,  653. 

criminal  proceedings,  when  a  bar  to,  9,  10,  522. 
joinder  of  causes  of,  523. 
remitting,  to  County  Court,  526,  585. 
who  may  maintain,  335,  394. 
proceedings  in,  are  privileged,  187 — 194. 
on  the  case  for  words,  14,  92. 

[*732]  ACTIONABLE  PER  SE, 

what  language  is,  18,  53—83,  306. 
what  language  is  not,  83—92,  297. 
37  LIB.   &  SLAN.  (649) 


578       .  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

ACTS, 

injurious  to  reputation  without  express  words,  13. 
of  public  men,  may  be  criticised,  36. 

ADJECTIVE, 

libellous  charge  may  be  conveyed  by,  127. 

ADMINISTRATION  OF  JUSTICE, 
bond  fide  comments  on,  44 — 46. 
publications  reflecting  on,  492 — 512. 

ADMINISTRATORS, 

right  of  action  does  not  pass  to,  407. 

ADMIRALTY, 

report  to,  privileged,  212. 

ADMISSION, 

by  defendant,  effect  of,  561,  600. 

ADMONITION, 

communications  by  way  of,  217,  245. 

ADULTERY, 

charge  of,  in  writing,  is  libellous,  22. 
words  imputing,  not  actionable,  61,  85. 

to  a  physician,  68,  85. 

to  a  clergyman,  68. 

to  a  married  woman,  86,  87. 

law  on  this  point  considered,  87 — 89. 

"  ADVENTURER,"  20. 

ADVERTISEMENT, 

in  newspaper,  when  privileged,  229,  230,  246. 

of  tradesmen,  maybe  criticised,  32,  50,  51. 

of  cure,  may  be  criticised,  51. 

publication  by,  when  evidence  of  malice,  230,  286. 

of  reward  for  detection  of  crime,  232,  289,  646. 

ADVICE, 

when  privileged,  213—215,  245,  645. 
on  evidence,  555. 

"  ADVISED  SPEAKING,"  466,  477,  479,  721. 

ADVOCATES, 

privilege  of,  189,  190. 

reports  of  speeches  of,  255. 

publication  in  vindication  of  character  assailed  by,  233. 

AFFAIRS  OF  STATE, 

may  be  criticised,  42 — 44. 

[*  733]  AFFIDAVIT, 

defamatory  statements  in,  privileged,  191 — 193. 

may  be  expunged,  192. 

in  answer  to  interrogatories,  550 — 553. 

on  applications  for  leave  to  file  criminal  informations,  610 — 612. 

in  aggravation  or  mitigation  of  punishment,  608. 

AGENT, 

and  principal,  409. 
principal's  orders  no  defence,  410. 
evidence  of  authority  to  publish,  414,  434. 

(650) 


GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

ratification,  412. 

innocently  publishing  a  libel,  160,  161,  411. 

principal  not  liable  for  malice  of,  311. 

liability  of  principal  for  publication  by,  411,  413,  433. 

AGGRAVATING  CIRCUMSTANCES, 

must  be  justified,  171. 

AGGRAVATION  OF  DAMAGES,  309—311,  570. 
wide  circulation  of  libel,  309. 
malice,  310. 

by  plea  of  justification,  178,  278,  311,  569.  575. 
by  injudicious  cross-examination  of  plaintiff,  574. 
plaintiff's  good  character,  310. 

AGGRAVATION  OF  PUNISHMENT, 
affidavits  in,  608. 

AGREEMENT, 

to  accept  the  publication  of  mutual  apologies,  654. 

to  compromise,  578. 

promise  to  abstain  from  publishing  a  libel  no  consideration  for,  8. 

ALIEN,  408,  409,  518. 

ALLEGORY, 

may  be  a  libel,  6,  97,  131,  435. 

ALLUSION, 

libel  by,  97,  566. 

AMBASSADORS, 

foreign,  libels  on,  422,  430. 

"AMBIDEXTER,"  76,  110. 

AMBIGUOUS  EXPRESSIONS, 

rule  of  construction  as  to,  103,  106 — 116. 

evidence  as  to  meaning  of,  566. 

meaning  ascribed  by  innuendo  must  be  adhered  to,  101. 

AMENDMENT, 

of  pleadings,  533,  544. 

at  the  trial,  572. 

of  variances  between  words  laid  and  those  proved,  565. 

of  indictment,  600,  601. 

of  information,  613. 

[*734]  AMENDS, 

evidence  of,  in  mitigation  of  damages,  322,  657. 

ANAGRAM, 

may  be  a  libel,  6. 

ANNUAL  PROFITS, 

diminution  of,  298,  303,  307. 

ANONYMOUS  LETTER, 

shown  confidentially,  207,  620. 

opinion  as  to  handwriting  of,  when  privileged,  240. 

ANSWERS, 

to  interrogatories,  550—553. 
precedents  of,  659 — 661. 

(651) 


580  GENERAL    INDEX. 

The  paging  refers  to  ihe  [*]  pages.) 

APOLOGY,  322—324,  541. 

should  be  demanded  before  action,  517. 

jury  to  judge  of  sufficiency  of,  582,  657. 

should  be  frank  and  full,  324,  524. 

notice  of  intention  to  give  evidence  of,  542,  658. 

form  of  plea  of,  322,  542,  656,  658. 

publication  of,  345. 

APOTHECARY, 

words  concerning,  71,  77. 

APPEAL, 

proceedings  in  the  Court  of,  580. 
from  County  Court,  587. 

APPEALS, 

to  the  public,  may  be  criticised,  50—52. 

APPEARANCE,  524. 

APPOINTMENT,  • 

to  government  office  is  matter  of  public  concern,  43. 
proof  of,  558. 

APPORTIONMENT, 

of  costs  of  issues,  369. 

ARBITRATOR, 

costs  where  cause  referred  to,  368. 
cannot  commit  for  contempt,  503. 

ARCHBISHOP, 

language  concerning,  26. 

ARCHITECT, 

criticisms  on  the  works  of,  49,  71,  172. 
words  concerning,  71,  78,  623. 

ARGUMENT, 

of  the  rule  for  a  criminal  information,  612. 

ARREST  OF  JUDGMENT, 

motion  for,  in  civil  cases,  580. 

in  criminal  cases,  599,  605,  606. 

[*735]  ARSON, 

charge  of,  113,  122,  130. 

ARTIST, 

criticism  on  the  pictures  and  works  of,  48,  49. 

ART-MASTER. 

libel  on,  24,  117. 

ASSAULT, 

with  intent  to  rob,  charge  of,  actionable,  55. 

ASSERTION, 

of  fact,  bond  fide  comment,  35 — 38. 

ASTERISKS, 

put  for  plaintiff's  name,  131,  601. 

ATTACHMENT, 

for  contempt,  499. 
committal  differs  from,  499. 

(652) 


GENERAL    INDEX.  581 

(The  paging  refers  to  the  [*]  pages.) 

ATTACK 

by  plaintiff  on  defendant,  answer  to,  privileged,  232,  318. 

ATTEMPT, 

to  commit  a  felony,  charge  of,  actionable,  55,  57. 
words  sufficient  to  impute,  124. 

ATTORNEY, 

slander  of,  69,  70,  76,  77,  206,  627,  637. 

libels  on,  28,  98,  105,  116,  228,  621,  649,  681. 

acting  as  advocate,  privilege  of,  190. 

not  liable  for  asserting  his  client's  rights,  143,  230. 

bill  of  costs  of,  not  privileged,  194. 

publication  of  libel  to,  208,  231. 

may  give  information  unasked  to  client,  211. 

plaintiff,  proof  of  qualification,  558. 

ATTORNEY-GENERAL, 

fiat  of,  in  Ireland,  when  necessary,  383. 

AUCTIONEER, 

words  concerning,  69,  82. 

libellous  notice  to,  by  person  interested  in  proceeds  of  sale,  230,  239. 

AUTHOR, 

criticisms  of  works  of,  48. 
liable  as  publisher,  157,  158,  432. 

AUTHORITY, 

given  to  another  to  publish  a  libel,  411 — 415,  433. 

when  implied,  412. 

ratification,  412. 

in  criminal  cases,  413,  433,  434. 

A  UTREF01S  A  CQ  U1T, 
plea  of,  596. 

A  UTREFOIS  CONVICT, 
plea  of,  596. 

[*736]  AVERMENTS, 

when  necessary,  118 — 120,  530. 

in  civil  cases,  need  not  be  proved,  531. 

except  of  plaintiff's  office  or  trade,  531,  568. 

in  indictments  and  criminal  informations,  introductory  averments  still 

necessary,  593,  594,  601. 
of  special  intent,  423,  594. 

B. 
BAD  CHARACTER, 

evidence  of  plaintiff's,  320,  321. 

BAIL, 

for  appearance  to  take  trial,  592. 

BANKER, 

refusing  to  honour  a  cheque,  13. 

circulation  of  rumour  that  bank  had  stopped  payment,  207,  285. 

refusing  to  accept  cheque  of  a  particular  bank,  24,  115,  240. 

BANKRUPT, 

can  sue  for  libel  or  slander,  406. 

charges  against,  by  trustee,  privileged,  239,  285. 

BANKRUPTCY, 

imputation  of,  6,  29,  80. 

(653) 


582  GENERAL    INDEX. 

(The  paging  refura  to  the  [*]  pages  ) 

proceedings  in,  reports  of,  privileged,  252,  253. 
charge  of  having  committed  act  of,  230,  24.0. 
no  defence,  407. 

BARRISTER, 

slander  of,  70,  75,  76. 

libels  on,  27,  233. 

privilege  of,  189. 

instructions  to,  absolutely  privileged,  191. 

libel  by,  in  law  book,  5,  257. 

criminal  information  asrainst  County  Court  Judge  for  refusing  to  hear, 

431. 
report  of  speech  of,  in  Court,  248,  255. 

BASTARD, 

imputation  that  heir-apparent  is,  140,  141. 
charge  of  having  had,  not  actionable,  86. 

except  formerly  under  18  Elizabeth,  c.  3.  .  59. 

"BAWD,"  87,  133. 

BAWDY  HOUSE, 

charge  of  keeping,  is  actionable,  56,  133. 

BEGIN, 

right  to,  always  with  plaintiff,  557. 

BELIEF, 

in  truth  of  charge,  necessary  to  privilege,  200,  205,  216. 
in  truth,  in  mitigation  of  damages,  317. 
hearsay  is  probable  ground  for,  216,  282. 

[*737]  BIGAMY, 

what  words  amount  to  a  charge  of,  123. 
charge  of,  is  actionable,  55. 

BILL  OF  COSTS, 

not  privileged,  194. 

BILL  OF  EXCEPTIONS,  580. 

BISHOP, 

words  concerning,  75. 

charge  of,  privileged,  240. 

entitled  to  criminal  information,  431. 

"BLACK-LEG,"  23,  63,  84. 

"BLACK-LIST," 

libel  on  a  trader  in,  253. 

"  BLACK-MAILING,"  105. 

"  BLACK-SHEEP,"  23,  63. 

BLASPHEMOUS  WORDS,  440—470. 
defined,  440,  701. 

mere  denial  of  Christianity  is  not  blasphemy,  442,  692. 
intent  to  bring  religion  into  contempt,  441,  694. 
honest  advocacy  of  heretical  opinions,  442,  693. 
justification  not  allowed,  441. 
heresy  distinct  from  blasphemy,  446. 
heresy,  447 — 450. 
statutory  provisions,  464 — 467. 
jurisdiction  of  Ecclesiastical  Courts,  448,  449. 

(654) 


GENKKAE    INDEX.  583 

(The  paging  refers  to  the  [*]  pages .) 

reports  of  proceedings  in  Courts  of  Justice  as  to,  are  not  privileged,  254, 

444. 
Nonconformity,  448. 
Unitarianism,  460—462. 
history  of  the  law,  450—464,  696. 
punishment,  464. 

limitation  of  prosecutions  for,  466. 
Common  Law  not  affected  by  statutes,  466. 
Scotch  Law  as  to,  462. 
suggested  reforms  of  law  as  to,  467 — 470,  705. 

BOARD  OF  GUARDIANS, 

reports  of  meetings  of,  not  privileged,  266,  379. 

BOARD  OF  TRADE, 

powers  of,  under  Newspaper  Libel  and  Registration  Act,  1881,  387,  391. 

BONA  FIDE  COMMENT, 
no  libel,  32—52. 
plea  of,  575,  635—637. 

BONA  FIDES 

of  defendant,  38,  39,  200,  216,  282,  317. 

[*738]  BOOK, 

reviews  and  criticisms  of,  48,  49. 

in  Latin,  162. 

not  evidence  of  fact  stated  in  it,  575. 

libellous,  sale  of,  by  bookseller's  servant,  160,  410,  414. 

obscene,  statute  for  preventing  sale  of,  472. 

private  circulation,  printed  for,  49. 

BOOKSELLER, 
libel  on,  32. 
liability  of,  for  sale  of  libellous  work,  160,  161,  410,  414. 

BREACH  OF  PEACE, 

libels  tend  to,  7,  423,  425. 

BREWER, 

words  concerning,  80. 

BRIBERY, 

words  imputing,  actionable,  56. 

in  offices  of  public  trust,  71. 

at  parliamentary  election,  comments  on,  43,  213. 

contempt  of  court  by  offering  a  bribe  to  a  judge,  495. 

BROTHEL, 

imputation  of  keeping,  56,  133, 

BROTHER, 

cannot  sue  for  slander  of  sister,  15,  335. 

"BUNGLER," 

spoken  of  an  artificer,  is  actionable,  67. 

"  BUNTER,"  110. 

BURGLARY, 

charge  of,  actionable,  55. 

BURIAL  LAWS  AMENDMENT  ACT,  1880  .  .  466,  724. 

(655) 


584  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

BURNING, 

in  effigy,  6. 

BUSINESS, 

slander  of  persons  in,  65 — 83,  531,  568. 
libels  of  persons  in  way  of,  29 — 32. 

BUTCHER, 

words  concerning,  82,  240. 

BYE-LAW, 

charge  of  breach  of,  56,  57. 

placarding  conviction  for  infringement  of,  174. 

BYSTANDER, 

at  trial,  remarks  of,  not  privileged,  191. 


CALLING, 

words  injuring  plaintiff  in  the  way  of  his,  when  written,  19,  29 — 32,  531, 

568. 
when  spoken,  65,  79 — 83. 

[*739]  CAMBRIDGE, 

resident  undergraduate  of,  where  sued,  520. 

CANDIDATE, 

for  office,  words  concerning,  43,  44,  73,  241. 
private  life  of,  when  open  to  discussion,  43,  233,  246. 

CANT,  or  SLANG  TERMS,  109,  110,  566. 

CAPTAIN  OF  SHIP, 

words  concerning,  27,  32,  218,  231. 

CARD-SHARPING, 

charge  of,  110,  174. 

CARICATURE, 

libel  by  means  of,  6,  20. 

CARPENTER, 

words  concerning,  69. 

CASE, 

action  on  the,  where  slander  will  not  lie,  14,  92. 

CAUSES  OF  ACTION, 
joinder  of,  523. 

CAUTION 

to  tradesmen,  when  privileged,  214 — 221. 

CENSORSHIP  OF  PLAYS,  11. 
CENSORSHIP  OF  THE  PRESS,  10—13. 

CENSURE, 

words  of,  by  a  judge  absolutely  privileged,  188,  189. 

CERTAINTY, 

how  ensured  formerly,  118. 
early  technicalities,  118. 
of  the  imputation,  120. 
criminal  charges,  121 — 124. 

(656) 


GENERAL    IXDKX.  585 

(The  paging  refers  to  the  [*]  pages.) 

indirect  imputations. 

as  to  person  defamed,  127 — 133. 

CERTIFICATE 

of  entry  in  register  of  newspapers,  390,  553,  561. 
of  previous  conviction,  573. 
for  costs,  579. 

CERTIORARI 

for  removal  of  indictment  for  libel,  597. 
costs  when  indictment  removed  by,  609. 

CHALK-MARK 

may  be  a  libel,  6. 

CHALLENGE  TO  FIGHT, 

sending,  a  misdemeanour,  425. 

[*740]  CHAMBERS, 

judge  at,  power  of,  to  commit  for  contempt,  503. 
report  of  proceedings  in,  privileged,  252. 

CHANGE  OF  VENUE,  557. 

CHARACTER, 

proof  of  plaintiff's  special,  558. 

of  servant,  prima  facie  privileged,  201,  274,  618,  643. 

bond  fide  communications  as  to,  203 — 221. 

master  not  bound  to  give,  202. 

maliciously  giving  bad,  274,  279. 

evidence  of  good,  not  receivable  unless  impeached,  310. 

evidence  of  plaintiff's  bad,  320,  321. 

evidence  for  defendant  as  to,  on  trial  of  indictment,  603. 

of  witnesses,  evidence  to  impeach,  573. 

CHARGE 

of  crime  must  be  precise,  120 — 127. 

of  attempt  to  commit  a  crime,  57,  124. 

of  an  impossible  crime,  63. 

of  being  a  felon,  54—57,  172. 

of  being  a  returned  convict,  179. 

to  a  constable  in  his  character  as  such,  221,  274. 

CHARITABLE  INSTITUTION, 

criticisms  on  officers  of,  47,  244. 
trustees  of,  words  concerning,  26,  419. 
private,  not  to  be  criticised,  47. 
report  by  officer  of,  privileged,  221. 

CHASTITY, 

charge  of  want  of,  not  actionable,  86 — 89. 

actionable  if  in  writing,  22. 

"CHEAT,"  62,  82. 

CHEATING, 

charge  of,  libellous,  22,  23. 
in  way  of  trade,  actionable,  81. 

CHEQUE, 

action  for  dishonouring,  13. 

refusal  to  receive,  of  a  particular  bank,  24,  115,  240. 

(657) 


586  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

CHILD, 

liability  of,  405. 

parent  not  answerable  for  wrongs  by,  413. 

CHOICE  OF  COURT,  519. 

CHRISTIANITY, 

publications  against,  440 — 470. 
part  of  the  common  law,  452,  691. 

CHURCH  MEETING, 

words  spoken  at,  may  be  privileged,  243. 

[*741]  CHURCHWARDEN, 
slander  of,  63. 

CIRCULARS 

of  tradesmen,  may  be  criticised,  32,  50,  51. 

issue  of,  when  restrained  by  injunction,  146,  147,  342 — 364. 

when  privileged,  240. 

CIRCULATION  OF  LIBEL, 

extent  and  mode  of,  281,  293. 

CLAIM, 

statement  of,  528—532,  618—633. 

by  husband  for  words  defamatory  of  wife,  394,  631. 

by  wife  alone,  395. 

joint  and  several,  419. 

particulars  of,  633. 

CLASS, 

religious  order  or  community,  libels  on,  429. 

CLERGYMEN, 

criticism  on  the  public  action  of,  40,  47,  48,  52. 

words  affecting  them  in  office,  26,  47,  48,  73,  625. 

charges  of  incontinency  and  immorality  against,  68,  73 — 75. 

deprivation  of  office  the  ground  of  action,  73. 

plaintiff  must  hold  benefice  or  office  at  the  time  of  the  slander,  71. 

slander  by,  in  sermon,  &c,  5,  242. 

libels  by,  on  schoolmaster  in  parish,  275. 

general  reflections  on  the  clergy  of  a  particular  diocese,  429. 

CLERK, 

words  concerning,  79. 

to  vestry,  words  concerning,  27. 

to  justices,  words  concerning,  27. 

words  by,  not  privileged,  189. 

"  CLIPPER,"  110. 

CLUB, 

"blackballed,"  21. 

notice  posted  in,  23. 

charge  of  misconduct  in,  84,  300,  680. 

COINING, 

charge  of,  59,  624,  639,  641. 

COLLOQUIUM, 

or  application  of  the  slander,  118. 
provisions  of  C.  L.  P.  Act  as  to,  120. 

(658) 


GENERAL    INDEX.  58' 

(The  paging  refers  to  the  [*]  pages.) 

COLONIAL  COURTS, 

power  of,  to  commit  for  contempts,  503. 

COLONIAL  LEGISLATIVE  ASSEMBLI  KS, 

power  of,  to  commit  for  contempt,  4!)U,  491. 

COMMANDS 

of  muster  no  defence  to  servant,  410. 

[*742]  COMMENTS 

on  matters  of  public  interest,  32 — 52,  635,  636. 

every  citizen  has  a  right  to  make,  32,  35. 

not  privileged  in  the  strict  sense  of  that  term,  33. 

differ  from  reports,  35,  36,  38,  259. 

on  matters  of  local  interest,  41. 

bad  motives  must  not  be  recklessly  imputed,  38,  39. 

honest  belief  in  truth  of,  not  alone  sufficient,  38. 

limits  on,  35 — 40. 

affairs  of  State,  42—44,  635,  636. 

trials  in  law  courts,  44—46. 

public  institutions  and  local  authorities,  46,  47. 

parochial  charity,  47. 

ecclesiastical  affairs,  47,  48. 

books  and  pictures,  48,  49. 

architecture,  48,  49,  71,  172. 

theatres  and  concerts,  49,  50. 

public  entertainments,  49,  50. 

appeals  to  the  public  notice,  50 — 52. 

advertisements  and  circulars,  32,  50,  51. 

controversy  in  newspapers,  50 — 52,  232. 

on  imaginary  facts,  35,  37,  38. 

PRECEDENTS   OF  PLEAS  OP  BONA  FIDE,  635,  636- 

COMMISSION 

to  examine  witnesses,  556. 

costs  of,  579. 

COMMITTEE 

of  charity,  communications  to,  by,  240,  244. 

of  House  of  Parliament,  petition  to,  privileged,  186. 

members  have  a  common  interest,  243,  648. 

COMMODITIES 

of  tradesmen,  verbal  imputations  upon,  81,  147. 
libel  on,  30,  31,  147—150. 

"COMMON  FILCHER,"  62. 

COMMON  INTEREST 

is  a  ground  of  privilege,  238—247,  648. 
what  amounts  to,  238,  648,  649. 

COMMONS,  HOUSE  OF, 

petition  to,  is  privileged,  186,  290. 

libels  on,  488. 

contempts  of,  488. 

member  of,  may  be  committed  for  contempt  of  court,  512. 

COMPANIES 

and  corporations,  415. 
may  sue  for  slander  of  title,  416. 
costs  of  proceedings,  373,  609,  610. 
may  sue  a  shareholder  for  libel,  30. 

(659) 


588  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

liability  of,  for  acts  of  servants,  416. 

proceedings  of,  at  meetings  of  shareholders,  privileged,  240,  246. 

directors  of,  privilege  of,  238,  243,  244,  247. 

[*743]  COMPARISON 

of  handwriting,  560,  599. 

COMPETITION 

between  rival  traders,  31,  147. 

COMPOSITION 

of  libel  without  publication,  not  actionable,  157. 

COMPROMISE 

in  civil  case,  578. 

not  generally  allowed  in  criminal  cases,  613. 

CONCERTS 

may  be  criticised,  49. 

CONFESSION 

of  publication,  561. 

CONFIDENTIAL  COMMUNICATIONS,  204—221. 
in  answer  to  inquiries,  privileged,  204: — 208. 
volunteered,  208—210. 

in  discharge  of  a  duty  arising  from  relationship,  210—213. 
volunteered  where  no  confidential  relationship,  213 — 221. 

CONFIDENTIAL  RELATION, 
defined,  210. 

CONSOLIDATION 

of  actions,  525. 

CONSORTIUM, 

loss  of,  88,  300,  335. 

CONSPIRACY, 

charge  of,  actionable,  56. 

CONSTABLES, 

words  concerning,  189,  241,  289,  334. 

words  spoken  on  giving  plaintiff  in  charge  of,  are  privileged,  221 — 225. 

CONSTITUTION, 

libels  against  the,  485 — 488. 

CONSTRUCTION,  93—133. 

what  meaning  the  speaker  intended  to  convey  is  immaterial,  93,  106,  574. 

libel  or  no  libel  is  a  question  for  the  jury,  25,  94,  361,  566,  578,  579. 

duty  of  the  judge,  95,  578. 

words  not  to  be  construed  in  mitiori  sensu,  95 — 97. 

jury  to  consider  the  words  as  a  whole,  25,  98. 

evidence  of  other  defamatory  publications,  98,  272. 

office  of  the  innuendo,  99 — 103. 

words  obviously  defamatory,  104,  105. 

words  prima  facie  defamatory,  106 — 108. 

neutral  words,  109 — 112. 

words  prima  facie  innocent,  112 — 116. 

ironical  words,  116. 

words  spoken  in  jest,  5,  106,  108,  574,  639. 

words  clearly  innocent,  116,  117. 

after  verdict,  605. 

(660) 


GENERAL    INDEX.  589 

(The  paging  refers  to  the  [*]  pages .) 

[*744]  CONTAGIOUS  DISEASE, 

charge  of  having,  actionable,  64,  65,  625. 

CONTEMPTIBLE, 

words  rendering  plaintiff,  libellous,  19/20. 

CONTEMPTS 

of  the  King,  479. 

of  the  Government,  481—485. 

of  Parliament,  may  be  dealt  with  in  the  law  courts,  488,  489. 

how  punished  by  the  House  of  Lords,  489. 

how  by  the  House  of  Commons,  489. 

the  propriety  of  committal  by,  cannot  be   questioned  in  courts  of 
law,  490. 
of  Colonial  Legislative  Assemblies,  490,  491. 

their  power  to  exclude,  491. 
of  courts  of  law  and  judges,  492. 
of  Superior  Courts,  492. 

proceedings  against  offenders  for  contempt,  492,  494,  498. 

member  of  Parliament  may  be  committed  for,  512. 

judge  at  chambers,  503. 

attachm  -nt  and  committal,  499. 

publications  prejudicial  to  fair  trial  of  action,  494—498. 

injunctions  to  restrain,  337 — 339. 

Scotch  law  as  to,  354. 
of  inferior  courts  of  record,  506. 

no  power  to  commit  except  for  those  committed  in  face  of  court,  506. 

statutory  powers,  509 — 511. 

county  courts,  509. 
of  inferior  courts  not  of  record,  508. 

sureties  for  good  behaviour,  508. 
of  ecclesiastical  courts,  512. 
letters  to  judge  may  be,  191. 

CONTEMPTUOUS  DAMAGES,  294. 

CONTEXT 

must  be  considered,  25,  98,  482,  579. 

CONTRACT 

as  to  libels'cannot  be  enforced,  7,  8. 

promise  not  to  publish  a  libel  is  no  consideration  for,  8. 

CONTRADICTION, 

letter  of,  refusal  to  publish,  378,  383,  726. 

CONTRIBUTION, 

none  between  tort-feasors,  158. 

CONTROVERSY 

in  the  newspapers,  50 — 52,  232. 

"CONVICTED  FELON,"  59,  172,  573. 

CONVICTION, 

summary,  before  justices,  reports  of,  248. 

proof  of,  573. 

placards  notifying,  at  railway  stations,  174. 

[*745]  COPYING  LIBELS 

from  one  newspaper  into  another,  160,   314,  577 

COPYRIGHT, 

none  in  immoral  or  libellous  work,  8. 

(661) 


590  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

CORONER, 

defamatory  statement  made  at  inquest,  188,  228. 
has  power  to  eject  disturber,  507. 

CORPORATIONS 

may  sue  for  libel,  30,  415. 
costs  of  proceedings,  373. 
may  sue  for  slander  of  title,  416. 
may  be  sued  for  libel,  5,  416. 

not  for  slander,  416. 
may  be  sued  for  acts  of  agents,  416. 
criminally  liable,  417. 

CORRUPTION 

in  office,  charge  of,  26,  27,  37,  67,  126,  279. 

COSTS,  365—373,  579,  608. 

now  follow  the  event,  365. 

all  early  statutes  as  to  costs  repealed  by  Judicature  Act,  366. 

application  to  deprive  successful  plaintiff  of  costs,  366. 

successful  defendant  cannot  be  ordered  to  pay,  367. 

of  separate  issues,  369. 

of  former  trial,  372,  584. 

of  husband  and  wife,  372. 

of  public  bodies,  373,  609,  610. 

of  commission  to  examine  witnesses,  579. 

bill  of,  not  privileged,  194. 

after  payment  into  court,  370. 

of  counterclaim,  371. 

security  for,  396,  407,  525,  609. 

certificate  for,  579. 

practice  as  to  asking  for,  366,  579. 

married  women  liable  for,  372,  398,  402,  580. 

special  costs,  368,  579. 

in  actions  remitted  to  County  Court,  368,  372,  587. 

in  local  Court  of  Record,  368,  588. 

on  writ  of  inquiry,  368. 

jury  not  to  consider  question  of,  296,  579. 

of  indictment,  609. 

of  criminal  information,  613. 

COUNSEL, 

slander  of,  70,  75,  76. 

libel  on,  27,  233. 

privilege  of,  189. 

instructions  to,  absolutely  privileged,  191. 

libel  by,  in  law  book,  5,  257. 

criminal  information  against  County  Court  judge  for  refusing  to  hear,  431. 

report  of  speech  of,  in  court,  248,  255. 

[*746]  COUNTERCLAIM,  543. 
costs  of,  371,  372. 
may  be  struck  out,  421,  543. 

COUNTS 

in  an  indictment,  595. 

COUNTY, 

proof  of  publication  within,  600. 

COUNTY  COURT, 

no  jurisdiction  in  actions  for  slander  or  libel,  except  by  consent,  526,  584. 
remitting  action  to,  372,  526,  585. 

(662) 


•     (JKNKUAL    index.  591 

(The  paging  refers  to  the  [*]  pages.) 

subsequent  proceedings,  586. 

jury,  587. 

trial,  587. 

new  trial,  587. 

costs,  587. 

contempts  of,  509 — 511. 

criminal  information  against  judge  of,  431. 

FORMS  OF  PRECEDENTS,  NOTICES,  &C,  070 — 673. 

COURT, 

choice  of,  519. 

payment  into,  324,  370,  541,  655,  656. 

Divisional,  proceedings  in,  580. 

of  Appeal,  proceedings  in,  580. 

proceedings  in  County  Court,  584: — 588. 

university,  proceedings  in,  520. 

COURT  OF  PASSAGE, 

jurisdiction  of,  588. 
costs  in,  588. 

COURTS  MARTIAL, 

defamatory  statements  made  in  course  of  proceedings  by,  189,  193. 
report  of  proceedings  in,  259. 

COURTS  OF  JUSTICE, 

proceedings  of,  absolutely  privileged,  187 — 194» 
report  of  proceedings  of,  privileged,  24S. 

may  be  forbidden,  339. 
comments  on  proceedings  of,  40,  44 — 46. 
contempts  of  Superior  Courts  of  Record,  337,  492 — 504. 

Colonial  Courts,  503. 

Inferior  Courts,  504. 

Inferior  Courts  of  Record,  506. 
proceedings  in  County  Court,  584. 
other  Inferior,  518,  588. 

COURTS  OF  PETTY  SESSION, 

defamatory   statements  made  in  the  regular  course  of  proceedings  at, 

privileged,  187. 
reports  of  proceedings,  privileged,  248. 

"COZENER,"  62. 

[*747]  CREDIT, 

of  traders,  libels  affecting,  6,  29,  31. 

words  affecting,  65,  79—83,  628. 
cross-examining  to,  320,  546,  573. 

CRIME, 

libel  is,  slander  is  not  a,  6,  422,  551. 

words  conveying  direct  charge  of,  actionable,  53,  58. 

statement  that  plaintiff  had  been  accused  of  crime,  19,  57. 

words  not  necessarily  imputing,  actionable  if  written,  19. 

imputation  must  be  specific,  120 — 127. 

person  charged  must  be  certain,  127. 

words  of  suspicion  only,  57. 

imputing  the  murder  of  a  person  yet  alive,  63. 

attempting  to  commit,  55,  57,  124. 

infamous,  threat  to  accuse  of,  427. 

solicitation  of  hiring  to  commit,  56. 

iustification  as  to  charge  of  committing,  178,  576. 

(663) 


592  GENERAL    INDEX.      - 

(The  paging  refers  to  the  [*]  pages.) 

proof  of  conviction,  573. 

information  of,  given  to  public  officer,  privileged,  221—225. 

CRIMINAL  INFORMATION,  9,  427—431,  610—614. 
fiat  of  public  prosecutor  not  required  for,  384,  589. 
two  kinds  of,  426. 
where  granted,  428 — 430. 
application  must  be  made  promptly,  429. 
practice  and  evidence,  610 — 614. 
motion  for  order  nisi,  610. 
affidavits  on  application  for,  610 — 612. 
argument  on  application  for,  612. 
compromise,  613. 
trial,  613. 
costs,  613. 

PRECEDENTS  OF,  673 — 678. 

CRIMINAL  LAW,  422—439. 
publication,  432—436. 
privilege,  436. 
justification,  437. 
remedy  by  indictment,  422. 
special  intent,  when  necessary,  423. 
punishment  at  common  law,  422,  425. 
statutes,  426. 

remedy  by  information,  427 — 431. 

libels  on  foreign  ambassadors,  public  personages,  &c,  422,  430. 
considerations  as  to  criminal  proceedings  for  libel,  7,  9. 
practice  and  evidence,  589 — 614. 

CRIMINAL  LIABILITY, 

of  a  married  woman,  404. 

of  an  alien,  408. 

of  an  infant,  405. 

of  agent  or  servant,  410. 

of  master  or  principal,  413,  433. 

of  a  corporation,  417. 

of  a  lunatic,  406. 

[*748]  CRIMINAL  PLEADINGS, 
precedents  of,  673 — 687. 

CRITIC, 

duties  of,  34,  35. 
CRITICISM, 

right  of,  32—52. 

distinguished  from  defamation,  33,  34. 

of  public  men  and  institutions,  36 — 47. 

must  be  fair  and  bond  fide,  38,  39. 

on  public  entertainments,  &c,  49,  50. 

of  books,  pictures,  and  architecture,  48,  49. 

ridicule  of  author  permitted,  49. 

CROSS-EXAMINING  "TO  CREDIT,"  320,  546,  573. 

CROWN  CASES  RESERVED, 

Court  for  consideration  of,  606. 

CRUELTY, 

charge  of,  libellous,  22,  37. 

"  CUCKOLD,"  86. 

(664) 


GENEEAL    INDKX.  593 

(The  paging  refers  to  the  [*]  pages.) 

CUSTOM, 

loss  of,  as  special  damage,  298,  302,  303. 

evidence  as  to  loss  of,  307,  309. 

of  London,  as  to  charge  of  whoredom,  GO,  86. 

CUSTOMERS, 

complaints  by  privileged,  231. 

D. 

DAMAGES, 

general  and  special  damage  defined,  291. 

I.  General  damages,  293. 

different  kinds  of,  294,  295. 

amount  of,  is  a  question  for  the  jury,  293,  296,  579,  583. 

when  presumed  without  evidence,  293,  294. 

must  be  assessed  once  for  all,  295,  579. 

costs  should  not  be  considered  in  assessing,  296,  579. 

excessive,  296,  581,  583. 

loss  of  custom,  294,  303. 

evidence  of,  570. 

II.  Special  damage  wJiere  the  words  air  not  actionable  per  se,  297. 

what  constitutes,  297.  298. 
must  be  pleaded,  and  proved,  297,  302. 
what  a  sufficient  allegation  of,  302. 
loss  of  individual  customers,  303. 
diminution  in  profits,  303,  304. 
subsequently  arising,  306. 

III.  Special  damage  where  the  words  are  actionable  per  se,  306. 

what  may  be  considered  in  assessing,  307. 
subsequent  to  action,  308. 

[*749]  DAMAGES— continued. 

IV.  Evidence  for  the  plaintiff  in  aggravation  of  damages,  309. 

what  admissible  as,  309,  310. 

extensive  publication,  159,161,  230,  243,  286,  309. 

plaintiff's  good  character,  310. 

V.  Evidence  for  tlit  defendant  in  mitigation  of  damages,  312. 
(i.)  Evidence  falling  short  of  a  justification,  312. 

justification  of  part  of  the  libel,  176.  312. 
(ii.)  Previous  publications  by  others,  174,  313,  314,  577. 
(hi.)  Liability  of  others,  157, '315  420,  576. 

other  actions,  not  to  be  considered,  158,  316,  547,  577. 
(iv.)  Absence  of  malice,  317,  318. 

(v.)  Evidence  of  plaintiff's  bad  character,  320,  321,  577. 
(vi.)  Absence  of  special  damage,  322. 
(vii.)  Apology  and  amends,  322 — 324,  541. 

VI.  Remoteness  of  damages,  325. 

damages  must  be  the  direct  residt  of  defendant's  words,  326. 
damage  caused  by  the  act  of  a  third  party,  32S. 
not  essential  that  such  third  party  should  believe  the   charge,  329. 
third  person  compelled  to  repeat  defendant's  words,  330. 
damage  caused  by  repetition  of  a  slander,  331. 
husband  and  wife,  335. 

damage  must  have  accrued  to  the  plaintiff  himself,  335. 
38  LIB.   &  slan.  (665) 


594  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

DANCING-MISTRESS, 
slander  of,  69. 

DEAD. 

libe's  on  the,  422—424,  682. 
intenl  must  be  proved,  423. 
slander  of,  335. 

DEATH, 

charge  of  being  the  cause  of,  77,  121,  122. 

"  guilty  of  the  death  of  D."  is  actionable,  121. 

of  party  to  action,  effect  of,  407. 

DEBATES  IN  PARLIAMENT, 
reports  of,  263. 

DEBT, 

unfounded  claim  of,  not  actionable,  24,  81. 
letter  repudiating,  231. 

DECREES  OF  STAR  CHAMBER, 

regulating  the  press,  10,  11. 

DEER  STEALING, 

charge  of,  actionable,  61. 

DEFAMATION, 

defined,  1.7. 

jurisdiction  of  Ecclesiastical  Courts  abolished,  17,  61,  88,  722. 

DEFAMATORY  WORDS, 

defined,  1,  17. 

classified,  17—92. 

What  are  not  in  their  nature,  89 — 92. 

[*750]  DEFAULT, 

judgment  by,  526. 

"  DEFAULTER,"  20,  27. 

DEFENCE,  534—543. 

that  words  are  not  defamatory,  635 — 640. 
justification,  170—180,  538,  641—643. 
privilege,  181,  537,  643—653. 
absolute  privilege,  184—196,  643,  644. 
qualified  privilege,  197—268,  644—652. 
infancy,  no  defence,  405. 
insanity,  no  defence,  406. 
drunkenness,  no  defence,  655. 
master's  commands,  no  defence,  410. 
instructions  for,  532. 
traverses,  633. 

objections  on  points  of  law,  536,  634. 
accord  and  satisfaction,  540. 
Statute  of  Limitations,  520,  540,  653. 
previous  proceedings,  526,  540,  653. 
apology,  322—324,^541,  155,  657. 
payment  into  court,  541,  655,  656. 
other  special  defences,  540,  654. 
justification  in  criminal  cases,  437 — 439,  674,  684. 
innocent  publication,  155,  411,  433,  639. 
publication  to  plaintiff  only,  151,  152,  432,  637. 
precedents  op,  in  actions  of  libel  and  slander.  633 — 658. 
slander  of  title,  663—667. 
(666; 


GENERAL    INDEX.  595 

(The  paging  refers  to  the  [*]  pages.) 

DEFENDANT, 

married  woman,  396,  400 — 405. 

matters  to  be  considered  by,  524. 

may  be  called  by  plaintiff,  562. 

evidence  for,  57 i — 577. 

successful,  cannot  be  ordered  to  pay  costs,  367. 

whom  to  be  made,  155,  157,  432,  515—517. 

joint;  420. 

no  contribution  between  or  indemnity  to,  158,  316. 

evidence  of  good  character,  on  indictment,  603. 

DEFINITION, 

of  libel,  1,  6,  19,  463. 

of  slander,  1,  6,  53. 

of  defamatory  words,  1,  6,  17,  36. 

of  publication,  151. 

of  reputation,  151. 

of  confidential  relationship,  210. 

of  malice,  4,  271. 

DELIVERY, 

of  libel  to  third  person,  when  a  publication,  157,  432,  433. 

DEMANDING  MONEY  WITH  MENACES, 
charge  of,  actionable,  55. 

BE  MINIMIS  JS'ON  CURAT  LEX,  2,  18. 

[*  751]     DEMURRER, 

proceedings  in  lieu  of,  in  civil  cases,  53&. 
in  criminal  cases,  596,  683. 
joinder  in,  684,  687. 
to  a  plea,  686, 

DESTRUCTION 

of  obscene  works,  justices  may  order,  472,  473. 

"  DIFFICULTIES," 

charge  of  being  in,  libellous,  21,  29. 

DIRECTOR  OF  PUBLIC  PROSECUTIONS, 
fiat  of,  where  necessary,  9,  383,  384,  589. 

DIRECTORS  OF  COMPANY, 

reports  of,  to  shareholders,  privileged,  240. 
charges  against,  when  privileged,  240,  244,  246. 
statement  to,  by  co-directors,  privileged,  244. 
have  a  common  interest,  238,  247. 
costs  of  libels  on,  373,  609. 

DISCOVERY 

of  documents,  553 — 555. 

what  documents  are  privileged  from,  554. 

state  papers,  555. 

by  interrogatories,  545 — 553. 

iti  County  Court,  586,  587. 

DISEASE,  INFECTIOUS  OR  CONTAGIOUS, 

charge  of  having,  53,  64,  65,  625. 

DISHONESTY, 

charge  of,  written,  19,  20,  30. 

verbal,  57,  62,  81—84,  628. 
imputation  of,  in  giving  character  of  servant,  203,  274. 

(667) 


50(5  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

DISSENTING  MINISTER, 

words  concerning,  26,  243,  305,  308. 

DIVORCE, 

assertions  thai  husband  is  seeking,  a  libel  on  wile,  23. 

DOCUMENTS, 

discovery  of,  553 — 555. 
inspection  of,  553. 

DOOR, 

officer  may  break  open  outer,  499.  722. 

DOUBTFUL  MEANING, 

words  of,  106—116,  565—567,  574. 

DRUNKENNESS, 

charge  of,  27,  68.  69,  74,  88,  228,  285- 
no  defence,  655. 

DUEL, 

challenge  to  fight  a,  425. 

[*  752]     "  DUFFING," 
charge  of,  111. 

"  DUNCE," 

actionable,  if  spoken  of  a  lawyer,  70. 

DUTY, 

as  ground  of  privilege,  199 — 229. 
may  be  moral  or  social,  199. 

E. 

ECCLESIASTICAL  AFFAIRS 

may  be  criticised,  47,  48. 

ECCLESIASTICAL  COURTS, 

jurisdiction  of,  in  cases  of  defamation,  61,  88. 

abolished,  17,  61,  88,  722. 
blasphemy,  447 — 450. 
law  of,  how  far  part  of  English  Common  Law,  449 — 450. 
cannot  commit  for  contempt,  512. 

EDITOR  OF  NEWSPAPER, 

words  concerning,  22,  28,  29,  642. 

may  comment  on  matters  of  public  interest,  32 — 52- 

joint  liability  for  publication  of  libel,  157—160,  382,  384—387. 

liability  to  proprietor,  158. 

reports  published  by,  265—268,  377,  382. 

EFFIGY, 

libel  by  means  of,  6. 

burning  in,  6. 

assertion  that  plaintiff  had  been  hung  in,  23. 

EMBEZZLEMENT, 

words  imputing,  actionable,  55,  64,  122. 

EMPLOYER, 

liability  of,  411,  413.  433. 

EMPLOYMENT, 

loss  of,  is  special  damage,  298. 

(668) 


GENERAL    INDEX.  597 

(The  paging  refers  to  the  [*]  pages.) 

ENDORSEMENT  ON  WRIT,  533. 
is  privileged,  191. 

ENGAGEMENT, 

notice  of  termination  of,  not  libellous,  24. 

ENGINEER. 

libel  on,  31. 

ETIQUETTE, 

charge  of  a  breach  of,  not  actionable,  27. 

EVENT, 

costs  to  follow,  365. 
where  separate  issues,  369. 

[*753]  EVIDENCE, 

1.  In  civil  cases, 

advice  on,  555. 

of  appointment  to  office,  &c,  558. 

of  publication,  559. 

copy  of  register  of  newspaper  proprietors,  391,  392,  560. 

as  to  innuendo,  565. 

as  to  the  libel,  562. 

secondary,  563. 

as  to  speaking  the  slander,  564. 

of  plaintiff's  good  reputation,  310. 

bad  character,  320,  321. 
that  the  words  refer  to  plaintiff,  567. 

that  the  words  were  spoken  of  him  in  the  way  of  his  trade,  568. 
of  malice,  272,  281,  286,  568. 
of  other  libels  or  slander,  276,  569. 
of  damage,  570. 

in  aggravation  of  damages,  309 — 311. 
in  mitigation  of  damages,  312 — 324,  577. 
of  plaintiff's  distress  of  mind,  298,  301. 
of  loss  of  trade,  302—306. 
as  to  handwriting,  559,  560. 
of  admissions  by  defendant,  561. 
of  personal  ill-will,  272,  275. 
for  defendant,  572—577. 
of  privilege,  575. 
of  a  justification,  170,  575. 
of  an  apology,  322. 

2.  In  criminal  cases, 

(i.)  In  proceedings  by  way  of  indictment, 

for  the  prosecution,  599. 

for  the  defence,  433,  601. 
(ii.)  In  criminal  informations, 

for  the  prosecution,  610. 

for  the  defence,  612. 

EX  PARTE  PROCEEDINGS, 

reports  of,  248. 

EXAGGERATION 

will  destroy  privilege,  245. 

may  be  evidence  of  malice,  283 — 285. 

EXAMINATION  OF  WITNESSES  BEFORE  TRIAL,  556. 

EXCEPTIONS,  BILL  OF,  580. 

(669) 


5<)8  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

EXCESS 

in  mode  and  extent  of  publication,  159,  L61,  230,  243,  28G,  309. 

EXCOMMUNICATED, 

charge  of  having  been,  is  actionable,  61. 

EXECUTORS,  407. 

have  a  common  interest,  238. 

action  for  slander  of  title  survives  to,  408. 

EXEMPLARY  DAMAGES, 
when  allowed,  295. 

[*754]  EXPERTS, 

evidence  of,  560. 

EXTORTION, 

charge  of,  28. 

by  threat  to  accuse  of  an  infamous  crime,  427. 
publish  a  libel,  426. 

F. 

FACT, 

assertion  of,  is  not  comment,  35,.  36,  38.    | 

FAIR  REPORT, 

what  is  meant  by,  255 — 263. 
question  for  jury,  262. 

"  FALLING  SICKNESS," 

charge  of  having,  65,  76. 

FALSE  BOOKS, 

charge  of  keeping,  81. 

FALSE  NEWS, 

devisers  of,  134, 135,  425. 

FALSE  PRETENCES, 

charge  of  obtaining  a  horse  by,  124. 
money  by,- 259. 

FALSE  WEIGHTS, 

charge  of  using,  81. 

FALSEHOOD 

need  not  be  shown  by  plaintiff,  170. 

exceptions,  13!),  343. 

when  evidence  of  malice,  278,  569. 

FATHER, 

publication  to,  of  complaint  of  child's  misconduct,  privileged,  212,  217. 
son  cannot  sue  for  slander  of  deceased,  15,  335. 
may  take  criminal  proceedings,  422,  682. 

FEELINGS, 

injury  to,  300—302,  307. 

FEES, 

scale  of,  under  Newspaper  Libel  and  Registration  Act,  1881  .  .391. 

"FELON,"  22,  59. 

meaning  of,  172. 

FELONY, 

what  amounls  to  a  charge  of,  120 — 127,  178. 
imputation  of,  actionable,  55. 

(G70) 


GENERAL    INDEX.  599 

(The  paging  refers  to  the  [*]  pages.) 

FIAT 

of  public  prosecutor,  in  case  of  newspaper  libel,  9.  383,  589. 

not  required  for  criminal  information,  384,  589. 

[*755]  FICTITIOUS  NAMES, 

use  of,  to  conceal  defamation,  129. 

FIGURATIVE  EXPRESSIONS, 
libel  by,  23,  105,  56(5. 

FIREMEN, 

words  concerning,  69,  132. 

FIRM, 

may  sue  for  imputation  of  insolvency  of  one  member,  83,  419. 

libels  on,  336,  417—419. 

liability  of,  for  libel  by  partner  or  servant,  418. 

FISHERY  ACTS, 

charge  of  offence  against,  not  actionable,  56. 

FLOWER  SHOW, 

may  be  criticised,  49. 

FOREIGN  AMBASSADORS, 

libellous  reflections  on,  422,  430. 

FOREIGN  LANGUAGE, 

slander  or  libel  in,  109,  152,  162,  435,  619. 

FOREIGNER, 

plaintiff,  security  for  costs  by,  408,  525. 
liability  of,  for  libel  or  slander,  408. 

FORGERY, 

charge  of,  actionable,  55. 

what  words  a  sufficient  charge  of,  61,  122. 

FORMER  PROCEEDINGS,  521,  540,  653. 
costs  of,  372. 
against  other  defendants,  immaterial,  158,  316,  547,  577. 

FORMER  PUBLICATION, 

of  same  libel  by  others,  no  defence,  157,  313,  315,  576. 

no  evidence  of  its  truth,  174,  577. 

how  far  mitigation  of  damages,  313,  327. 
by  the  defendant,  277,  310. 

FORMS, 

of  pleadings,  notices,  &c,  App.  A.  615 — 687. 

FORNICATION, 

charge  of,  not  actionable,  85,  87. 

"  FORSWORN,"  62,  124. 

FOX'S  LIBEL  ACT  (32  Geo.  III.  c.  60),  13,  94,  362,  604,  710. 

FOXES, 

charge  of  poisoning,  libellous,  23. 

charge  of  trapping,  against  a  gamekeeper,  actionable,  79,  115. 

(671) 


600  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.') 

FRAUD, 

charge  of,  actionable,  if  written,  21. 

if  spoken  in  way  of  trade,  29. 

not  otherwise,  62. 

imputation  of,  to  opponent,  generally  unprivileged,  229,  231. 

[*756]   FREEDOM 

of  the  press,  10,  248—268. 

FRESH  ACTION, 

for  same  words,  521,  540,  653. 

FRESH  DAMAGES, 

as  a  rule,  no  action  lies  for,  295,  306. 

"FROZEN  SNAKE,"  20. 

judicial  notice  of  meaning  of,  105,  566. 

"FUDGE,"  99. 


GALLOWS, 

may  be  a  libel  in  effigy,  6. 

"  GAMBLER,"  63. 

GAME, 

charge  of  killing,  24,  115. 

GAMEKEEPER, 

words  concerning,  79,  115. 

GENERAL  DAMAGES, 

defined  and  distinguished  from  special  damage,  291. 
amount  entirely  in  discretion  of  jury,  293,  296. 

GENERAL  ISSUE, 

abolished  in  civil  cases,  534. 

on  trial  of  indictment  or  information,  596. 

GIST 

of  an  action  of  slander,  18,  19. 

GONORRHOEA, 

charge  of  having,  is  actionable,  64. 

GOOD  BEHAVIOUR, 

binding  to,  508. 

GOOD  CHARACTER, 

plaintiff  may  not  as  a  rule  give  evidence  of  his,  310,  569. 
defendant  may  in  a  criminal  case,  603. 

GOODS, 

slander  of  title  to,  79,  147. 
libel  on,  30—32,  147—150. 

GOVERNMENT, 

libels  against,  481—485. 
patronage,  may  be  criticised,  43. 

GOVERNOR, 

official  communication  to,  privileged,  565. 

(072) 


GENEBAL    INDEX.  60] 

(The  paging  refers  to  the  [*]  pages .) 

GRAND  JURY, 

defamatory  presentment  by,  privileged,  190. 

[*757]  GUARDIANS   OF  THE  POOR, 

words  concerning,  26. 

report  of  proceedings  of  Board,  not  privileged,  40,  176,  267,  379. 

GUNSMITH, 

libel  on,  31. 

H. 

HABEAS  CORPUS, 

Speaker's  warrant  an  answer  to,  489. 

HANDBILL 

of  tradesman,  may  be  criticised,  32,  50,  51. 

HANDWRITING, 

proof  of,  559,  560,  599,  661. 
comparison  of,  560. 

HEADING 

of  paragraph  may  be  libellous,  28,  98,  173. 
must  be  justified,  170. 

"  HEALER  OF  FELONS,"  113. 

HEARSAY, 

sufficient  ground  for  bond  fide  belief,  205,  216,  282. 

HEIR, 

slander  of  title  of,  140,  141. 

HERALD, 

words  concerning,  71. 

HERESY,  446—450. 

distinct  from  blasphemy,  446,  692,  693. 
no  crime  at  common  law,  447,  701. 
statutory  provisions  as  to,  447,  448. 
jurisdiction  of  ecclesiastical  courts,  447 — 450. 
nonconformity,  448. 
Unitarianism,  460 — 462. 

"  HERMAPHRODITE,"  69. 

HIEROGLYPHICS 

may  be  a  libel,  6. 

HISTORY, 

matters  of,  may  be  discussed,  486,  691,  692. 
need  not  be  strictly  proved,  575. 

"HOCUSSED,"  101. 

HOMffiOPATHIST. 

charge  of  meetiag,  in  consultation,  27. 

HONORARY  OFFICE, 

words  of  one  in,  66. 

HOSPITALITY, 

loss  of,  298,  300,  301,  355. 

(673) 


C02  GENERAL   INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

[*758]  HOUSE  OF  COMMONS, 
member  of  privileged,  185. 

may  be  committed  for  contempt  of  court,  512. 
words  defamatory  of,  488. 
contempt  of,  488—490. 
breach  of  privilege,  488. 

Speaker's  warrant,  an  answer  to  habeas  corpus,  489. 
committee  of,  evidence  given  before,  privileged,  186. 
petition  to,  privileged,  186. 

HOUSE  OF  LORDS, 

contempts  of,  488,  489. 

HUSBAND  AND  WIFE,  394—405, 
costs,  372,  398. 

proceedings  by  wife  against  husband,  397,  398. 
liability  of  husband,  400—404. 
special  damage,  300,  335. 
one  in  law,  153. 

claim  by  husband  for  words  defamatory  of  wife,  335,  395,  631. 
married  woman  defendant,  400 — 404. 
plea  that  plaintiffs  are  not,  541. 
repetition  by  wife  to  husband  of  charge  affecting  herself,  326,  329, 

by  husband  to  wife  of  a  charge  affecting  others,  153,  289,  334. 
communication  to  wife  of  charge  against  husband,  153. 

"  HYPOCRITE,"  20. 

I. 

IGNORANCE, 

words  imputing,  25,  26,  70,  71. 

ILLEGAL  TRADE, 

■  action  for  slander  in  respect  of,  not  maintainable,  83. 
must  be  speedily  pleaded,  536. 

ILLNESS, 

as  special  damage  arising  from  slander,  298,  301,  302,  326. 

IMMORAL  WORK, 

no  copyright  in,  8- 

publication  of,  is  a  misdemeanour,  471. 
magistrates  may  order  destruction  of,  472,  473. 
may  be  seized  in  the  post,  474. 

IMMORALITY, 

charge  of,  if  written,  is  actionable,  19. 

not  if  spoken,  85 — 89. 

in  a  physician,  27,  77,  78. 

in  a  clergyman,  f>7,  68,  73 — 75,  625. 

in  a  woman,  86—89,  399,  631. 

"  IMPOSTOR," 
libellous,  27. 
not  actionable,  if  spoken,  84. 

IMPRIMATUR 

no  longer  necessary,  10,  11.  , 

[*  759]  IMPUTATION 

of  crime  must  be  specific,  120 — 127. 

"IN  CONFIDENCE," 

publication  of  defamatory  matter.  153,  211 . 

(674) 


GENERAL    INDEX.  0U3 

(The  piigiiig  refers  to  the  [*]  pages.) 


INCOMPETENCY 

in  office,  charge  of,  25,  <>5,  71. 

INCONTINENCE, 

words  imputing,  to  unmarried  women,  86 — 89. 
to  married  women,  399,  631. 
to  clergymen,  07,  08,  73—75,  625. 

INDECENT  ASSAULT, 
charge  of,  74,  259. 

INDECENT  PUBLICATIONS 

may  be  stopped  in  the  post,  474. 

magistrates  may  order  destruction  of,  472,  473. 

INDEMNITY, 

contract  of,  against  publication  of  libel,  8. 

INDICTABLE  OFFENCE, 

imputation  of,  in  slander,  53—61,  120—127. 

INDICTMENT 

for  libel,  9,  593. 

words  must  be  set  out  verbatim,  593. 

pleading  to  the,  596,  684. 

removal  of,  by  certiorari,  597. 

averments,  593. 

joining  several  counts,  595. 

quashing,  595,  599. 

amending,  595. 

costs  of  trial  of,  609. 

fiat  of  public  prosecutor,  when  requisite,  9,  383,  589.' 

PRECEDENTS  OF,   678 — 683. 

INDORSEMENT  ON  WRIT,  523. 
is  privileged,  191. 

INFAMOUS  CRIME. 

charge  of,  with  intent  to  extort  money,  427. 

INFANCY. 

no  defence,  405. 

INFANTS,  405,  406. 

INFECTIOUS  DISEASE, 

imputations  of  having,  19,  64,  65,  625. 

INFERIOR  COURTS, 
defined,  511. 
jurisdiction  of,  518,  588. 
contempts  of,  504 — 511. 
costs  in,  368,  588. 
reports  of  proceedings  in,  249 — 252. 

"INFERNAL  VILLAIN,"  20. 

[*  760]  INFORMATION, 

when  privileged,  though  volunteered,  208—221. 

INFORMATION,  CRIMINAL, 

for  libel,  427—431. 

practice  on,  610 — 614.     • 

civil  remedy  barred  by,  when,  9,  10,  523. 

precedents  of,  673 — 678. 

(675) 


004  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

INFRINGEMENT  OF  PATENT, 

restraining  the  issue  of  circular  denouncing,  146,  147,  348 — 351. 

INGRATITUDE, 

charge  of,  libellous,  22. 

INITIALS  OF  NAME, 

libel  expressed  by,  131. 

INJUNCTIONS,  337—364.       - 

granted  in  actions  of  defamation  are  of  three  kinds,  337. 
I.  Injunctions  to  restrain  contempt  of  Court,  337. 
application  must  be  made  promptly,  338. 
forbidding  report  of  proceedings  in  Court,  338. 
II.  Injunctions  granted  after  verdict  or  at  the  final  hearing,  340,  622,  627. 
Ill    Injunctions  granted  on  interlocutory  application  before  or  without  verdict, 
342. 
words  injuring  the  plaintiff's  business,  146,  147,  343 — 347,  627. 
publication  of  private  letters,  347,  348. 
rival  patentees,  348 — 351. 

present  law  as  to  injunctions  considered,  351 — 364. 
precedents  of  claim  for,  532,  623,  627. 

INNKEEPER, 

libel  on,  32. 
slander  of,  79,81. 

INNOCENT  PUBLICATION,  4-6,  155,  433,  574,  638,  639. 

INNUENDO, 

office  of,  99—116. 

when  necessary,  109,  112. 

when  not  necessary,  104,  106. 

plaintiff  bound  by,  101. 

can  not  make  person  certain  who  was  uncertain  before,  118,  127. 

drafting  the,  530. 

evidence  as  to  the,  565,  601. 

INQUIRY, 

communications  in  answer  to,  privileged,  204 — 208. 
writ  of,  to  assess  damages,  368,  526. 

INSANITY, 

charge  of,  is  libellous,  21,  84,  210. 
of  the  king,  480. 
no  defence,  406,  639. 

INSINUATION, 

libel  by,  97. 

[*761]  INSOLVENCY, 

words  imputing,  20,  29,  80,  419,   628,  629. 
acts  imputing,  13. 

INSTRUCTIONS  TO   COUNSEL 
are  privileged,  191. 
for  defence,  532. 

INSULTING  LADIES, 

charge  of,  libellous,  20. 

INTEGRITY, 

words  imputing  want  of,  68. 

(676) 


GENERAL    INDEX.  '>,,:' 

(The  paging  refers  to  the  [*]  pages.) 

INTENTION 

without  overt  act,  do  crime,  57,  125. 

of  defendant,  immaterial  in  civil  cases,  3—6,  269. 

unless  occasion  privileged,  270. 
of  defendant,  in  criminal  eases,  immaterial,  136. 

except  ill  case  of  libel  on  dead 
&c,  423,  578,  594,  601. 
to  produce  natural  and  necessary  consequence  qf  act,  presumed,  ;!,  456 
averment  of  intention  divisible,  601. 
in  cases  of  blasphemy,  441,  694. 

INTERCOURSE 

of  friends,  loss  of,  words  tending  to  cause,  19,  300,  335. 

INTEREST, 

as  ground  of  privilege,  '238 — 247. 
in  actions  for  slander  of  title,  140. 
public,  matters  of,  may  be  criticised,  32—52. 

what  are,  is  a  question  for  the  judge,  42. 
where  large  body  of  persons  interested,  243. 
persons  present  who  have  no  corresponding  interest,  245. 
statement  to  protect  defendant's  own,  229. 

INTERLOCUTORY  APPLICATION, 
injunction  granted  on,  342 — 364. 

INTERROGATORIES,  545—553. 

leave  to  administer,  necessary,  545. 

must  be  relevant,   54(5. 

tending  to  criminate,  549. 

as  to  opponent's  case,  548. 

as  to  matters  stated  in  notice  under  Order  XXXVI.  r.  37..  548. 

setting  aside,  549. 

answer  to,  550. 

what  defendant  may  refuse  to  answer,  550. 

in  County  Court,  586. 

precedents  of,  and  answers,  059 — 661,  665. 

INTOLERANCE, 

religious,  charge  of,  libellous,  21. 

IRELAND, 

■fiat  of  Attorney-General,  when  requisite  in,  383. 
Ecclesiastical  Courts  abolished,  724. 

Newspaper  Libel  and  Registration  Act,  1881.  provisions  relating  to,  72>, 
726,  728. 

T*  7621  IRONICAL  PRAISE 

may  be  a  libel,  6,  21,  116,  567. 

IRONICAL  WORDS 

may  be  actionable,  6,  21,  116,  567. 

must  be  alleged  to  have  been  so  spoken,  116,  567. 

ISSUES,  SEVERAL, 

apportionment  of  costs  of,  369. 

itch,  .    . 

charge  of  having,  actionable,  if  written,  20. 
not,  if  merely  spoken,  64. 


"JACOBITE,"  72,   121. 

(677) 


GOO    "  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

JEST, 

publication  in,  no  defence,  5,  108. 

unless  so  understood  by  all,  106,  108,  574,  639. 

JOINDER 

of  causes  of  action,  523. 
of  parlies.  419,  420. 
in  demurrer,  684,  687. 

JOINING  A  DEFENDANT,  516. 

JOINT 

plaintiffs,  419 
defendants,  420. 

JOINT  PUBLICATION 

of  written  language,  157,  158,  432,  522. 

JOINT  STOCK  COMPANY, 

actions  by  and  against,  415 — 417. 
costs  of  directors  of,  373,  609. 

JOKE, 

words  intended  as  a,  5,  106,  108,  574,  639. 

JOURNALIST, 

privileges  of,  32-53,  384—387. 
defamation  of,  28,  29,  642. 

JUDAISM, 

gifts  to  promote,  463. 

JUDGE 

of  Superior  Court,  words  concerning,  492 — 502. 

of  Inferior  Court,  words  concerning,  504 — 511. 

at  Chambers,  503. 

must  decide  whether  matter  is  of  public  interest,  45. 

remarks  by,  absolutely  privileged,  187. 

private  letter  to,  not  privileged,  181. 

duty  of,  on  question  of  Libel  or  No  Libel,  94,  571. 

on  uncoutroverted  facts  to  decide  if  publication  privileged,  183,  572. 

when  to  nonsuit,  571. 

summing-up,  258,  578. 

charge  of  corruption  against,  126. 

[*763]  JUDGES'  CHAMBERS, 

reports  of  proceedings  in,  privileged,  250. 
committal  for  contempt  at,  503. 

JUDGMENT,  579. 

by  default,  526. 
proceedings  after,  5S0. 
arrest  of,  95,  118,  399,  580,  605. 
may  lie  reported  separately,  258,  651. 
against  husband  and  wife,  403. 

previous,  against  same  defendant,  a  bar,  521,  510,  653. 
against  others,  no  bar,  158,  316,  547,  577. 
unless  publication  joint,  421,  547,  653. 

JUDICIAL  NOTICE 

of  meanings  of  words,  &c,  106,  114,  116,  566. 

JUDICIAL  PROCEEDINGS, 

statements  made  in,  absolutely  privileged,  187. 
bond  fide  comments  on,  protected,  44. 

(678) 


GENERAL    INDEX.  G07 

(The  paging  refers  to  the  [*]  pages.) 

JUDICIAL  PROCEEDINGS.— Continued, 

private  letter  to  judge  is  not  privileged,  191,  242,  495. 
attorney's  bill  of  costs  is  not,  194. 
voluntary  affldavil  is  not,  194. 
courts  martial,  189,  L94. 

privilege  of  counsel.    189. 

solicitor  acting  as  advocate,  190. 

jury,  190. 

Witnesses,  190. 

atli(la\  its,  &c,  191. 
reports  of,  privileged,  164,  248. 
coram  nonjudice,  249. 
ex  partr  proceedings,  248. 
must  be  fair  and  acurate,  255,  263. 
when  not  privileged,  253,  263. 
no  comments  should  be  interpolated,  259. 

by  party  or  solicitor,  261,  497. 
prohibited  reports,-  253,  339. 

JURISDICTION,  518. 

depends  on  place  of  publication,  408,  518. 

of  County  Court,  584. 

of  Salford  Hundred  Court,  588.    ' 

of  Ecclesiastical  Courts  in  defamation,  abolished,  17,  61,  88,  722, 

of  Liverpool  Court  of  Passage,  588. 

service  out  of,  408,  409.  518,  519. 

to  restrain  by  injunction  the  publication  of  a  libel,  337—364. 

of  quarter  sessions,  426,  471. 

removal  of  indictment  by  certiorari,  597. 

summary,  of  justices  as  to  libels,  386,  592. 

JUROR, 

privilege  of,  190. 
•   withdrawing  a,  578, 

[*764]  JURY, 

to  determine  whether  a  publication  be  a  libel  or  not,  94,  95,  362,  469,  578, 

582. 
to  decide  on  the  sufficiency  of  an  apology,  582,  657. 
to  construe  the  libel,  25,  94,  579. 
to  determine  the  meaning  of  words,  94 — 116,  571. 
to  read  whole  of  libel,  25,  98,  263,  579,  604. 
to  determine  facts  on  which  plea  of  privilege  is  based,  183,  216. 
to  find  malice,  263,  273,  277. 

amount,  of  damages  is  question  for,  293,  296,  579,  583. 
perverse  finding  by,  296,  582. 
defendant's  right  to,  362,  557. 
function  of,  in  prosecutions  for  libel,  604. 
special,  costs  of,  579. 

to  determine  truth  of  the  facts  charged:  171. 
must  assess  damages  once  for  all,  265,  579. 
should  not  consider  the  question  of  costs,  296,  579. 

JUSTICE  OF  THE  PEACE, 

jurisdiction  in  libel,  589,  592. 
words  by,  when  privileged,  188,  189. 
words  concerning,  66,  72,  73- 

administration  of  the  law  by,  is  matter  of  public  interest,  45- 
reports  of  proceedings  before,  248. 
cannot  commit  for  contempt,  508- 
may  require  sureties  for  good  behaviour,  508. 

(679) 


60S  GENERAL    INDEX. 

[The  paging  refers  to  the  [*]  pages.) 

JUSTIFICATION,  170— ISO. 

onus  of  proviDg  words  true  is  on  the  defendant,  170. 

the  whole  libel  must  beproved  true,  170,  174. 

so  must  all  reported  speeches  of  repetitions  of  slander,  174. 

must  justify  the  precise  charge,  170,  539,  575 

heading  must  be  justified,  98,  170. 

of  innuendo,  177. 

must  be  proved  in  every  material  part.  171 — 174,575. 

slight  immaterial  inaccuracy,  171. 

of  part  only,  in  mitigation,  176,  539,  641. 

plea  of,  when  evidence  of  malice,  178,  311,  538. 

must  be  specially  pleaded,  177,  538—540. 

danger  of  pleading,  311,  538,  575. 

how  proved,  575. 

rebutting  proof  of,  570. 

Roman  law  as  to,  180. 

precedents,  pleas  of,  in  civil  cases,  641,  643. 

in  a  criminal  case,  437,  596. 

not  permitted  at  common  law,  437. 

under  Lord  Campbell's  Act,  437,  596,  602. 

not  allowed  in  prosecutions  for  blasphemous,  obscene,  or  seditious  libels, 

438,  597,  602. 
precedent  op  plea  of,  in  criminal  cases,  674,  684. 

K. 

KEEPING  A  BAWDY-HOUSE, 
charge  of,  actionable,  56. 

[*765]  KILLING, 

charge  of,  actionable,  121. 

KING, 

libels  against  the,  469. 

petition  to,  privileged,  227. 

words  cannot  amount  to  treason,  477. 

denying  his  title  to  the  crown,  480. 

disparaging  his  ministers,  481 — 485. 

KNOWLEDGE, 

of  defendant  that  his  words  were  false,  proof  positive  of  malice,  271,  287. 
in  criminal  cases,  426,  432,  433,  602. 


"  LAME-DUCK,"  110. 

LANDLORD    , 

and  tenant,  communications  between,  privileged,  217,  247. 

LANGUAGE, 

construction  of,  93 — 117, 
•  certainty  of ,  117—133. 
ambiguous,  106 — 116. 
actionable  -per  se,  19 — 83. 

actionable  only  by  reason  of  special  damage,  83 — 92. 
jury  to  determine  meaning  of,  25,  94,  95,  97,  571. 
in  excess  of  the  occasion,  284, 

LARCENY, 

what  will  amount  to  a  charge  of,  62,  122. 
charge  of,  actionable,  55. 

(680) 


GENERAL    INDEX.  609 

(The  paging  refers  to  the  [*]  pages.) 

LAW, 

ecclesiastical,  447 — 150. 
objection  in  point  of,  536,  634. 

LAW  LIST 

is  evidence,  558. 

LAWYER, 

slander  of,  70,  75-77,  206,  622,  627,  637. 
libel  on,  27,  28,  98,  105,  116,  228,  621,  649. 

LECTURES,  lAa    Jrr    ano 

contract  for  hire  of  rooms  for  delivery  of  blasphemous,  8,  443,  455,  698. 

LEGISLATIVE  ASSEMBLIES. 

libels  on,  488—491. 

petition  to,  is  privileged,  186. 

LEPROSY, 

charge  of  having,  64. 

LETTER, 

private,  publication  of,  restrained,  347,  348. 

of  explanation,  378,  383,  652. 

not  privileged  from  inspection.  554. 

before  action,  517. 

part  only  of,  may  be  privileged,  283. 

post-marks  on,  559,  600. 
[*766]  libels  by,  in  what  county  published,  518,  600. 

marked  "  confidential,"  211. 

threatening,  indictment  for,  427. 

to  judge  pendente  lit< ,  is  a  contempt,   191. 

LETTERS  PATENT, 

slander  of  title  to,  145—147,  348—351. 

"LIAR,"  84. 

LIBEL, 

defined,  1—10,  19—21,  468. 

malice  not  essential  to,  4: — 6,  93. 

distinguished  from  slander,  1,  3. 

action  for,  maintainable  without  proof  of  special  damage,  2 — 4. 

is  criminal.  6,  422,  551. 

in  foreign  language,  109,  435.  529.  565,  619. 

remedies  for.  civil  and  criminal,  i>.  422. 

how  construed,  93 — 133. 

or  no  libel,  pre-eminently  a  question  for  the  jury,  25,  94,  98,    362,    469, 

582. 
wbole  to  be  looked  at,  25.  its,  263,  57&  604. 
bona  fide  comment,  32 — 52,  635,  636. 
criminal  proceedings  for,  422 — 439,  589  —  614. 
on  the  dead,  422—424,  682. 
proof  of  the,  562-564,  600. 
contract  for  printing,  cannot  be  enforced,  7,  8. 
blasphemous,  440 — 470. 
obscene,  471 — 175. 
seditious,  476 — 512. 
publication  of,  151—169,  432 — 436. 
charge  of  publishing  a,  actionable,  28,  56. 
in  jest,  5,  106,  108,  639. 
39  lib.  &  slan.  (681) 


(310  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

LIBEL—  Continued. 

lunatic  may  be  sued  for,  5,  269,  406. 

on  things,  14.  15,  30,  138—150, 

County  Court  jurisdiction  in,  5S4. 

innocent  dissemination  of,  162,  432,  433,  433,  638. 

corporation  may  sue  and  be  sued  for,  5,  30,  416. 

injunctions  to  restrain,  337 — 364,  627. 

proving  truth  of,  170,  437. 

precedents  of  pleadinos  in  actions  for,  618 — 673. 

in  criminal  proceedings  for,  673 — 687. 

LIBEL  ACT, 

32  Geo.  III.  c.  60  (Mr.  Fox's),  13.  62,  94,  604,  710. 
6  &  7  Vict.  c.  96  (Lord  Campbell's)  716—719. 

s.  1.  .322.  542,  658,  717. 

s.  2.  .  322,  541,  544,  577,  658,  717. 

s.  3.  .426,  717. 

s.  4.  .426.  591,  601,  683,  717, 

s.  5.  .385,  420,  43s.  683,  718. 

s.  6.  .  437,  596,  608,  718. 

s.  7-  .  414,  433—436,  602,  718. 

s.  8.  •  609,  614,  718. 
Newspaper  Libel  and  Registration  Act,  1881.  .  9,  265,  374—393,  725. 

[*767]  "LIBELLER." 

charge  of  being,  56. 

"LIBELLOUS  JOURNALIST,"  28,  127. 

LIBELLOUS  WORKS, 

no  copyright  in,  8. 

printer  cannot  recover  for  printing,  7. 

no  action  lies  for  price  of,  7. 

LIBERTY 

of  the  press,  V\  248,  263,  265,  484,  487. 

history  of  growth  of,  10 — 13. 

LICENSED  VICTUALLER, 
libel  on,  30,  101. 
words  concerning,  81. 

LIFE, 

information  volunteered  with  view  of  saving,  privileged,  215. 

LIMITATIONS, 

Statute  of,  161,  520,  521,  540,  653. 
defence  under,  must  be  pleaded,  540,  653. 

LIVERY  STABLE  KEEPER, 
words  concerning,  69. 

LIVING  PERSON, 

obituary  notice  of,  may  be  a  libel,  21. 

LOCAL  COURTS, 

cost  in,  368,  588. 

LOCAL  INTEREST, 

matters  of,  may  be  criticised,  40,  41,  46,  47. 

LORD  CHAMBERLAIN, 

control  over  plays,  11,  12. 

1 682' 


GENERAL    INDEX.  Gil 

(The  pa^in^  refers  to  tlie  [*]  pages.) 

LOSS  OF  EMPLOYMENT 
is  special  damage,  299. 

LUNATIC,  406. 

liability  of,  5,  269,  406,  639. 
charge  of  being,  21,  84,  210. 

M. 

MADNESS, 

plea  of,  639. 
no  defence,  406. 
charge  of,  31,  84,  210. 

MAGAZINE, 

joint  liability  of  editor  and  printer  for  libel  in,  158,  413. 
[*768]  MAGISTRATES, 

language  concerning,  46,  71,  505. 

report  of  proceedings  before,  privileged,  248 — 252. 

cannot  commit  for  contempt,  508. 

proceedings  before,  589. 

obscene  works,  power  of,  to  search  for,  472. 

summary  jurisdiction  of,  in  cases  of  libel,  384,  592. 

"MAINSWORN,"  111. 

MAINTENANCE, 

loss  of,  by  wife,  as  special  damage,  335. 

MALICE, 

means  in  this  book  "actual  "  or  "express"  malice,  ix,  4,  270,  271. 
not  essential  to  the  action,  4,  269. 

unless  occasion  privileged,  4,  270,  568. 
onus  of  proving,  lies  on  the  plaintiff,  271,  56*. 
proof  of  actual,  275-290,  568. 
I.  Extrinsic  evidence  of,  275. 

former  publications  by  defendant  of  plaintiff,  276,  569. 

former  quarrels,  275,  569. 

acts  of  defendant  subsequent  to  publication,  276. 

that  the  words  are  false  is  alone  no  evidence  of,  278,  569. 

that  defendant  knew  the  words  were  false,  is  evidence  of  271 

278,  569. 
plea  of  justification,  178,  278,  538,  569. 
II.   Evidence  of,  derived  from  the  mode  and  extent  of  publication,  the 
terms  employed,  &c,  281. 
(i.)  Where   the    expressions   employed  are    exaggerated  and 

unwarrantable,  283. 
(ii.)  Where  the  mode  and  extent  of  publication  is  excessive 
159,  161,  286,  309. 
absence  of,  tends  to  mitigate  damages,  317. 
in  actions  of  slander  of  title,  142 — 147. 
or  no  malice,  is  for  the  jury.  263,  273,  277. 
mere  mistake  cannot  be  evidence  of.  273. 

destroys  privilege  of  report  under  Newspaper  Libel  Act,  377,  378,  381. 
whether  corporation  can  be  guilty  of,  5,  417. 

MALICIOUS  PROSECUTION,  14. 

"MAN  FRIDAY," 

charge  of  being,  not  actionable.  23.  114. 
judicial  notice  of  the  meaning  of  the  term,  114. 

(6*3) 


612  (iKNKRAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

"MAN  OF  STRAW," 
libellous,  20. 

MANSLAUGHTER, 

charge  of,  actionable,  55,  325. 

MANUSCRIPT, 

parting  with  possession  of,  is  publication,  154,  155. 
letters,  publication  of,  when  restrained,  347,  348. 

MARRIAGE, 

loss  of,  is  special  damage.  298,  299,  304. 

evidence  of  loss  of,  304,  305. 

communication  warning  against,  when  privileged,  219,  240,  274,  645. 

[*769]  MARRIED  WOMAN,  394—405. 
libel  on.  22,  394. 
slander  of,  86—89,  399,  631. 
charge  of  stealing  goods  of,  64,  96. 
trader,  30,  398. 
as  plaintiff,  394—400,  631. 
as  defendant,  400 — 405. 
rights  of  husband,  395. 
liability  of  husband,  400. 
criminal  liability  of,  404. 

may  be  ordered  to  find  sureties  for  good  behaviour,  426. 
imputing  immorality  to,  86 — -89,  399,  631. 
communication  to.  of  words  defamatory  of  husband,  153. 
presence  of,  on  privileged  occasion,  eil'ect  of,  154. 
costs  of,  372,  398,  402.' 

proceedings  by,  against  her  husband,  397,  398. 
security  for  costs  not  required  from,  396. 

MARRIED  WOMEN'S  PROPERTY  ACT,  1882.  .395—397,  400^03. 

MASTER 

and  servant,  409 — 415. 

his  commands  no  defence  for  his  servant,  410. 

liable  for  words  of  his  servant,  spoken  with  his  authority,  411. 

ratification,  412. 

giving  character  of  servant,  201—204,  274,  643. 

criminal  liability  of,  413,  4;!:*.. 

defence  under  Lord  Campbell's  Act,  414,  415,  433,  577. 

MASTER  MARINER. 

charge  of  drunkenness  against,  actionable,  27,  218,  231. 

MATTERS  OF  PUBLIC  INTEREST,  32—52,  366,  635. 
what  are,  40 — 52. 

matters  of  local  interest,  may  be,  41,  46. 
affairs  of  state,  42—44. 
parliamentary  proceedings,  42,  43. 
administration  of  justice,  44 — 46. 
public  authorities,  46,  47. 
local  institutions,  46,  47. 
parochial  charity,  47. 
ecclesiastical  affairs,  47,  48. 
unpublished  sermons,  48. 
books,  48,  49. 
pictures,  48,  49. 
architecture,  48,  49. 
theatres  and  concerts,  49. 
public  balls  and  entertainments,  49,  50. 

1 684 1 


GENERAL    INDEX.  613 

(The  paging  refers  to  the  [*]  pages.) 

MATTERS  OF  PUBLIC   INTEREST—  Continued. 

flower  show,  4!t,  50. 

appeals  to  the  public,  50 — 52. 

advertisement  of  cure,  50,  51. 

circulars  and  handbills  of  tradesmen,  50,  51. 

controversies  in  the  newspapers!  50 — 52. 

persons  inviting  public  attention,  50 — 52. 

PJtECEDENTS  OF  PLEA  OF,  685,  636. 

[*::o]  MAYOR. 

words  concerning,  40,  505,  509. 
contempt  of,  504,  5()8. 

MEANING 

of  words  is  a  question  for  the  jury,  93 — 117,  571,  579. 
assigned  by  innuendo,  must  be  adhered  to,  101. 
defendant  may  justify  the  words  without  the,  177,  641. 

ME    SURE  OF  DAMAGES,  18,  293,  302,  325. 

MEDICAL  MEN, 

slanders  on,  68,  77,  78,  85,  626. 

libels  on,  27,  32. 

criticism  on  the  advertisements  of,  51,  173. 

imputation  upon,  of  immorality,  68,  305. 

proof  of  qualification  of,  558. 

MEDICAL  REGISTER, 

is  evidence,  558. 

MEETINGS, 

public,  reports  of  proceedings  at,  how  far  privileged,  266 — 268,  377 — 383. 
what  are,  379. 

MEMBER  OF  PARLIAMENT, 

words  concerning,  73,  241,  314,  488—490. 
privilege  of  speech  of,  1*5,  186,  242,  275. 
may  be  committed  for  contempt  of  court,  512. 

MEMORIAL 

to  Home  Secretary,  226,  228,  563. 

MENTAL  DERANGEMENT, 

imputations  of,  21,  84,  210. 
defence  of,  406,  639. 

MENTAL  DISTRESS 

is  not' special  damage,  302.  307. 

MERCHANT'S  CLERK, 

words  concerning,  125,  230. 

MERCHANTS, 

words  concerning,  80 — 83. 
imputations  on  their  credit,  29,  80,  125. 
charge  of  keeping  false  account  books,  81. 
imputations  on  their  goods,  30,  81,  147 — 150. 

MIDWIFE, 

words  concerning,  71,  7S. 

MILITARY  AND  NAVAL  OFFICERS, 
reports  by,  privileged,  194. 
have  a  common  interest,  238. 

(685) 


614  GENERAL    INDEX. 

(The  paging  refers  to  the  [*J  pages.} 

MILITARY  OFFENCE, 
words  imputing,  57. 

MIND, 

charge  of  being  of  unsound,  21,  84,  210. 
unsoundness  of ,  no  defence,  209,  400,  (539. 
distress  of,  not  special  damage,  302,  307. 

[*771]  MINISTER, 

dissenting,  words  concerning,  26,  74,  75,  243. 
proof  of  special  damage  by,  299,  305,  308. 

MISCARRIAGE, 

charge  of,  against  servant  girl,  79. 

MISCONDUCT, 

general,  charge  of,  actionable  only  if  written,  19. 
in  trade,  charge  of,  is  actionable  always,  29,  SI. 
information  as  to,  to  public  officer,  privileged,  221. 

MISDEMEANOUR, 

charges  of,  56,  123. 

libel  is  a,  422.  . 

challenge  to  tight  a  duel  is,  425. 

MISJOINDER 

of  parties,  316,  419,  516. 

MISTAKE, 

publication  of  libel  by,  5,  6,  155,  269,  435. 
cannot  be  evidence  of  malice,  273. 

MIS  TRIAL,  607. 

MITIGATION  OF  DAMAGES, 

evidence  in,  312—324,  577. 

(i)  evidence  falling  short  of  a  justification,  176,  312,  641. 
(ii)  previous  publication  by  others,  313,  577. 
(in)  liability  of  others,  315,  576. 
(iv)  absence  of  malice,  317. 
(v)  evidence  of  plaintiff's  bad  character,  320. 
(vi)  absence  of  special  damages,  322. 
(vii)  apology  and  amends,  3J2— 324,  524,  542,  582,  657. 
as  to  pleading  facts  in,  542. 
particulars,  when  to  be  given,  577. 

under  Ord.  XXXVI.  r.  37,  318,  321. 
form  of  notice  of,  656. 

MIT10UI  8ENSU, 

construction  in,  95 — 97. 

MONEY, 

false  pretences,  charge  of  obtaining  by,  259. 

attempt  to  extort,  by  threatening  letter,  427. 

unfit  to  be  trusted  with,  charge  of  being,  actionable,  20. 

charge  of  owing,  not  actionable,  24,  81,  116. 

MOTHER-IN-LAW. 

charge  of  suing  in  County  Court,  not  libellous,  23. 

MOTION 

in  arrest  of  judgment,  95,  118,  580,  599,  605. 
for  a  new  trial,  in  a  civil  case,  580 — 584.  ♦ 

in  a  criminal  case.  606. 
for  a  rule  for  a  criminal  information,  610. 

(686) 


(JKNKR.U.    INDEX.  015 

(The  paging  refere  to  ibe  [*]  pages.) 

[*772]  MOTIVE, 

immaterial,  unless  occasion  privileged,  8,  4,  269,  270,  317. 

in  criminal  cases,  -42:5,  429. 

wicked,  imputation  of,  libellous,  25. 

•'MULATTO,"  PI. 

MURDER, 

charge  of,  actionable,  55,  121,  122. 

what  is  a  sufficient  charge  of,  121. 

what  insufficient,  122. 

charge  (if,  explained  away  by  context,  107. 

MUTE  OF  MALICE, 

prisoner  standing,  596. 

N. 

NAME  AND  ADDRESS, 

of  printer  and  his  employer,  12,  517. 

NAVAL  AND  MILITARY  OFFICERS, 

reports  by,  privileged,  194.  « 

have  a  common  interest,  238. 

NEGRO, 

charge  of  being,  not  libellous  in  England,  23 
NEWS, 

false,  fabrication  of,  134,  425. 

NEWSPAPER, 

proprietors,  liability  of,  5,  6,  29,  158,  265—268,  412—415,  635. 

criminal  liability  of,  412,  414,  415,  432. 

libels  on,  28,  29,  31. 

cannot  sue  editor  for  contribution,  158. 

register  of,  12,  13,  388,  727. 
editor,  liability  of,  158,  160,  382. 
libels  on,  22,  28,  29. 
printer  of,  12,  158,  432. 
.    publisher  of,  432. 

reporter,  duty  of,  250,  253,  255,  259. 

letters  written  to,  may  be  answered,  50 — 52. 

how  much  may  be  read  in  evidence,  573,  604. 

not  justified  in  publishing  story  told  by  plaintiff  against  himself,  5. 

proof  of  publication  of,  391,  560,  561. 

latitude  allowed  to  writers  in.  35,  36,  38,  39,  45,  481,  484. 

actionable  language  concerning,  28,  29,  104. 

imputation  that  it  lias  a  small  circulation,  libellous,  29. 

advertisement  in,  when  privileged,  •2','!),  230. 

statutory  provisions  relating  to,  12,  376—393,  561,  713,  714,  717. 

statutory  plea  of  apology  for  libel  in.  322,  541 — 543,  658. 

extent  of  circulation  of  libel  in,  increases  damage,  2!),  158,  159. 

discovery  of  proprietors,  printers,  and  publishers  of,  547,  551 — 553,  713. 

copying  libellous  articles  from  another,  Kin,  313,  :>14,  577. 

reports  in,  of  judicial  proceedings,  248 — 263. 

of  parliamentary  proceedings,  263 — 265. 
of  public  meetings,  how  far  privileged,  265,  :177.  652. 
[*773]  comments  in,  on  matters  of  public  interest,  32 — 52,  484,  487. 
editor  not  bound  to  give  up  name  of  correspondent,  319,  517. 
publications  reflecting  on  suitors,  witnesses,  or  prisoners,  44,  253,  493 — 

498. 
"  gross  negligence"  in  the  conduct  of,  what  is,  323. 

(687) 


616  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

NEWSPAPER  LIBEL  AND  REGISTRATION  ACT,  1881  .  .9,  265,  374— 
393,  725—729. 
definitions,  :»76. 

reports  of  public  meetings  privileged,  377 — 383. 
prosecution  of  newspapers  for  libel,  383 — 387. 
registration  of  name  of  proprietor,  387 — 393. 
certificate  made  evidence,  390,  553,  561. 
fees  on  making  return,  391. 

NEW  TRIAL, 

when  granted,  581 — 584. 
application  for,  to  what  Court,  580,  581. 
»•         perverse  finding  of  jury,  582. 
for  excessive  damages,  581. 
for  insufficient  damages,  581,  583. 
on  the  ground  of  surprise,  581,  584. 
verdict  against  weight  of  evidence,  581,  582. 
on  one  of  several  issues,  581. 
against  one  defendant,  582. 
in  County  Court,  587. 
costs  of  former  trial,  584. 
on  indictment  for  libel,  607. 

NOLLE  PROSEQUI,  605,  614. 

NOMINAL  DAMAGES,  294. 

NONCONFORMITY, 

not  illegal,  448. 

NONJOINDER, 

of  parties,  316,  420,  516. 

NONSUIT,  571. 

NOT  GUILTY, 

plea  of,  abolished  in  civil  cases,  534. 
plea  of,  on  trial  of  indictment,  596. 

NOTICE, 

to  auctioneer,  libel  in,  230. 

of  exclusion  from  public  room,  23. 

of  termination  of  engagement,  no  libel,  24,  117. 

that,  defendant   will  not  accept  payment  in  cheques  on  plaintiff's  bank, 

24,  115. 
of  action,  518,  631,  723. 
forms  of,  in  County  Court,  671 — 673. 
of  intention  to  adduce  evidence  of  apology  in  mitigation,  322,  541,  658. 

under  Ord.  XXXVI.  r.  37  .  .656. 
to  produce,  555,  600. 
to  inspect  and  admit,  555. 
of  trial,  555. 

[*774]  NOTICE  OF  TRIAL,  555. 

NUL  TIEL  RECORD,  545. 

O. 
OBITUARY  NOTICE, 

of  living  person,  may  be  a  libel,  21. 

OBJECTIONS  IN  POINT  OF  LAW,  536,  634. 

(688} 


GENERAL    IMiK.X.  61.7 

[The  paging  refers  to  the  [*J  pages.) 

OBSCENE  PUBLICATIONS,  254,  471—475. 
lest  of  obscenity,  471. 

Quarter  Sessions,  jurisdiction  incase  of,  471. 
summary  proceedings  under  20  &  21  Vict.  c.  83  .  .  472. 
reports  of  proceedings  of  Courts  of  Justice  as  to,  not  privileged,  254,474 
parties  aggrieved  may  appeal,  473. 
no  copyright  in,  8. 
may  be  stopped  in  the  post,  474 
may  be  seized  by  order  of  magistrates,  473,  722. 

OCCASION, 

of  publication  gives  rise  to  absolute  privilege,  180 — 196. 
qualified  privilege,  190 — 268. 

OCCUPATION 

of  plaintiff,  how  proved,  558 

libels  on  plaintiff  in  way  of,  25 — 30. 

words  concerning  plaintiff  in  way  of,  65—83,  303,  307,  625—628. 

OFFICE, 

words  concerning  plaintiff  in  his,  actionable,  whether  written,  19,  25,  29. 

or  spoken, 65 — 83. 
proof  of  appointment  to,  558. 

action  lies  whether  the  office  one  of  profit  or  not,  66. 
distinction  between  imputation  of  want  of  ability  and  imputation  of  want 

of  integrity,  26,  71. 
imputing  ignorance  in,  68,  69,  70,  626. 
plaintiff  must  be  in  the  present  enjoyment  of,  in  slander,  66,  67. 

not  so  in  libel,  25,  26. 
the  words 'must  affect  plaintiff  in  his  office,  65,  66,  568. 
imputing  corruption  to  officer  of  Court,  28,  71,  72. 
Judges  of  Superior  Court,  67.  492. 
Judges  of  Inferior  Court,  28,  40,  504—511. 
justices  of  the  peace.  72,  73,  505,  5  9. 
clergymen  and  ministers,  73 — 75. 
barristers-at  law,  27,  75. 
solicitors  and  attorneys,  76.  627. 
physicians  and  surgeons,  27,  77,  626. 
parish  officers,  27. 
#  traders,  79—83.  568- 

OFFICERS, 

naval  and  military,  reports  of,  privileged,  194 — 196. 

have  a  common  interest,  238. 
public,  charge  against,  privileged,  225 — 229. 
information  given  to,  privileged,  221 — 225. 

[*775]   OMNIA  PRESUMUNTUR  RITE  ESSE  ACTA,  66,  588. 

ON  BIT, 

may  be  a  libel,  97. 

OPINION, 

words  lowering  plaintiff  in  people's,  19. 
of  expert  witnesses,  when  receivable,  560. 

"  OPPRESSIVE  CONDUCT," 
charge  of,  libellous,  27. 

OPTICIAN, 

libel  on,  29. 

ORDER  NISI, 

motion  for,  610. 

(689) 


gig  GENERAL    [NDEX. 

(The  paging  refers  to  the  [*]  pages.) 

ORDER  XXX VI.  r.  37, 

effect  of,  318,  574,  577.  . 

iu  ao  way  restricts  cross-examination,  6Z\,  574. 
form  of  notice  under,  656.  _ 

interrogating  as  to  matters  stated  in  notice,  548. 

ORIGINATOR  OF  RUMOUR 

may  escape  punishment,  167,  331. 

OTHER  ACTIONS, 

not  to  be  considered,  158,  316,  547,  577. 
between  same  parties,  521,  540,  653. 

OTHER  LIBELS,  &c., 

evidence  of,  when  admitted,  277. 
to  explain  ambiguity  in  the  words,  98. 
as  evidence  of  malice,  276,  277. 
not  to  mitigate  damages,  313,  315. 
to  aggravate  damages,  310. 

OTHERS  LIABLE, 

no  defence,  157,  313,  420,  576. 
no  mitigation,  315,  577. 

OUTLAW, 

action  by,  525. 

civil  proceedings  in  outlawry,  now  abolished,  525. 

OVERSEER, 

words  concerning,  27,  234. 
evidence  as  to  appointment  of,  558. 

OWING  MONEY, 

charge  of,  24,  81,  116. 

OXFORD,  ,  ,    Kan 

resident  undergraduate  of,  where  to  be  sued,  5,i0. 


PAINTINGS, 

libels  bv,  6,  20,  22. 

public  exhibition  of,  may  be  criticised,  48,  49. 

[*  776]  PAMPHLET, 

publication  of  report  of  trial  in,  254,  497,  651. 

PAPERS, 

parliamentary,  liability  for  publication  of,  185. 

state,  production  of,  563. 

authorized  publication  of,  protected,  185,  715,  716. 

PARDON, 

crime  imputed  after  grant  of,  59. 
plea  of,  545,  596. 

PARENT, 

not  liable  for  acts  of  children,  413. 

publication  to,  of  complaint  of  child's  misconduct,  212,  217. 

PARISH  MEETINGS. 

proceedings  at,  privileged,  241. 
re]  orts  in  newspapers  of  proceedings  at,  267. 

(690) 


GENERAL    INDEX.  010 

(The  pi  giiig  refers  to  the  [*]  pages.) 

PARISH  OFFICERS, 

words  affecting,  27.  46,  71,  241. 
constable,  72,  241. 
overseer,  27. 
churchwarden,  63,  72. 
waywarden  of  a  district,  47. 

PARLIAMENT, 

speeches  in,  absolutely  privileged,  185. 

petition  to,  43,  1*6,  290. 

contempts  of  cither  House,  488 — 490. 

resolutions  of  House  of  Commons,  489. 

power  of  commitment,  489. 

Speaker's  warrant  not  to  be  too  closely  scrutinized,  490. 

PARLIAMENTARY  DEBATES  AND  PROCEEDINGS, 

reports  of,  in  newspaper,  privileged,  264,  265. 

may  be  freely  commented  on  by  every  one,  32,  42 — 44. 

PARLIAMENTARY  PAPERS, 

liability  for  publication  of,  185. 

statute  protecting  authorized  publication  of,  185,  715,  716. 

PAROCHIAL 

affairs  may  be  matter  of  public  comment,  41,  46,  241. 
charity,  privately  organized,  may  not,  47. 

PARTIALITY, 

charging  a  judge  with,  26,  493. 

PARTICULARS, 

of  statement  of  claim,  533,  633. 
of  plea  of  justification,  538,  576,  641. 
under  Ord.  XXXVI.  r.  37,  577,  656. 
summons  for,  632. 

PARTIES 

to  action,  394—421,  515—517. 

misjoinder  of,  316,  515. 

[*777]  non-joinder  of,  316,  420,  516. 

1.  Husband  and  wife,  394 

claim  by  husband  for  words  defamatory  of  wife,  394,  395. 

married  woman  plaintiff,  395. 

liability  of  husband  for  wife's  words,  400. 

married  woman  defendant,  401.  402. 

criminal  liability  of  a  married  woman,  404. 

2.  Infants,  405. 

3.  Lunatics,  406. 

4.  Bankrupts,  406. 

5.  Receivers,  407. 

6.  Executors  and  administrators,  407. 

7.  Aliens,  408. 

8.  Master  and  servant — principal  and  agent,  409. 

master's  commands  no  defence,  410. 
principal  liable  for  words  spoken  by  his  authority,  411. 
ratification,  412. 

criminal  liability  of  master  or  principal,  413. 
9.  Corporations  and  companies,  415. 

10.  Partners,  417. 

11.  Other  joint  plaintiffs,  419. 

12.  Joint  defendants,  420. 

(691) 


620  GENERAL    [NDEX. 

(The  paging  refers  to  the  [*]  pages.) 

PARTNERS,  .       .       ,  f  QQ   >iiq 

in  trade,  words  imputing  insolvency  to  one  ot,  83,  4iy. 
libels  on,  30,  336,  417. 
may  join  in  the  action,  417. 
previous  recovery  against  one  partner,  522. 

PASSAGE.  COURT   OF, 

jurisdiction  in  libel  and  slander,  588. 
costs  in,  368,  588. 

PATENT, 

slander  of  title  to,  145—147,  348—351. 

PATRONAGE, 

Government,  may  be  criticised,  43. 

PAWNBROKER, 

words  concerning,  111. 

PAYMENT  INTO  COURT, 

must  accompany  plea  under  Lord  Campbell  s  Act,  323,  542. 
no  plea  denying  liability  can  be  pleaded  at  same  time,  324,  541. 
form  of  plea,  655,  656,  659. 
costs  after,  370. 

PECUNIARY  LOSS, 

is  special  damage,  302. 

when  essential  to  action,  18. 

general  damages  not  confined  to  actual,  579. 

PEERS 

and  great  officers  of  the  realm,  slander  of,  134—137. 

PENCIL  MARK 

may  be  a  libel,  6. 

[*778]  PERJURY, 

what  amounts  to  a  charge  of,  123,  261. 
charge  of  committing,  actionable,  22,  56,  280. 
charge  of  procuring  one  to  commit,  56,  131. 

PERMANENT  MARK  OR  SIGN, 
if  scandalous,  a  libel,  6,  19. 

PERSONS, 

special  disabilities  and  relations,  394 — 421. 

1.  Husband  and  wife,  394. 

2.  Infants,  405. 

3.  Lunatics,  406. 

4.  Bankrupts,  406. 

5.  Receivers,  407. 

6.  Executors  and  administrators,  407. 

7.  Aliens,  4i  8. 

8.  Master  and  servant — principal  and  agent,  409. 

9.  Corporations  and  companies,  415. 

10.  Partners,  417. 

11.  Other  joint  plaintiffs,  419. 

12.  Joint  defendants,  420. 

PETITIONS 

for  redress  of  injuries,  privileged,  225—229. 
to  Parliament,  are  privileged,  180,  290- 

are  matters  of  public  interest,  43,  290. 
to  the  Sovereign,  227. 

(692) 


GENERAL    INDEX.  621 

(The  paging  refers  10  die  [*]  pages.) 

"PETTIFOGGING  SHYSTER,"  105. 

PHOTOGRAPHIC  COPY  OF  LIBEL, 

costs  of,  579. 

PHYSICIAN, 

words  concerning,  68,  77,  305,  626. 
libel  on,  27,  32. 

imputation  of  adultery  to,  68,  85. 
proof  of  qualification  of,  558. 

"PICKPOCKET,"  123. 

PICTURES, 

libels  by,  6,  20,  22. 

libellous,  public  exhibition  of,  422. 

publicly  exhibited,  may  be  criticised,  48,  49. 

"PIGEONING," 

charge  of,  75. 

PILLORY, 

punishment  of,  in  former  times,  440,  479. 

PIRACY, 

of  libellous  work,  no  action  for,  8. 

PLACARD, 

on  wall,  proof  of,  564. 
publication  by,  155,  287,  619. 

[*  779]     PLACE 

of  trial,  selection  of,  532. 

change  of.  557, 
of  publication,  how  far  material,  109,  408,  518,  600. 

PLAGUE, 

charge  of  having  the,  64. 

PLAINTIFF, 

cannot  sue  for  injury  to  reputation  of  another,  15. 

who  may  be,  394—420. 

damage  must  have  accrued  to,  335. 

death  of,  403. 

must  be  sufficiently  pointed  at  and  identified,  127,  567,  568. 

general  reputation  of,  310,  320. 

conduct  of,  in  provoking  libel,  &c,  232,  318. 

right  to  begin,  557. 

evidence  for,  558 — 570- 

matters  to  be  considered,  by,  513. 

proof  that  the  words  refer  to,  127,  567. 

special  character,  proof  of,  558. 

difficulty  as  to  right,  419,  515. 

joint  plaintiffs,  419,  631. 

infant,  405. 

married  woman,  394,  631. 

"PLANT,"  111,  112. 

PLAYS, 

control  of*  Lord  Chamberlain  over,  11,  12. 

i  693 1 


022  GENERAL    INDEX. 

(The  pugiiii?  refers  to  the  [*]  pafjes.) 

PLEADINGS, 

statements  in,  are  privileged,  191. 
lu  Oivil  ( w.sv.v. 
statemenl  of  claim,  528— 532,  CIS— 631 
joinder  of  cause-;  of  action,  523. 
averments,  what  necessary,  118,  -5--11. 
innuendo,  100—117,  530. 
colloquium,  118—120,  128,  531. 
special  damage,  139,  291,  297—336,  532,  570. 
amendment  of,  533,  544. 
particulars,  533,  629,  633. 
defence,  5;}4 — 543. 
traverses,  535. 

objections  on  points  of  law,  536. 
special  grounds  of  defence,  540. 
counterclaim,  543 
reply,  543,  637,  638. 
variance,  564,  600. 
County  Court,  584—588. 
Precedents  of, 

in  actions  for  libel  and  slander, 

statements  of  claim,  618—633. 
defences  and  replies,  633—659. 
interrogatories,  jfcc,  659 — 661. 
of  slander  of  title.  662—669. 
in  County  Court,  670 — 673. 
*780]     In  Criminal  Cases, 
indictment,  593. 
amendment  of,  595. 
demurrer  to,  596. 
Precedents  of, 

informations,  673 — 678. 

indictments,  678 — 687. 

pleas,  596,  684. 

replication  to  pleas,  597,  686. 

demurrer  to  plea,  597,  686. 

justification  under  Lord  Campbell's  Act,  596. 

information,  610. 

POISONING, 

foxes,  charge  of,  23. 

POLICEMAN, 

slander  of,  189,  241,  334 
words  published  to,  221—225. 

POLITICAL  AUTHORS. 

privilege  as  to  writings  of,  38,  39,  484,  487. 

POST-CARD. 

publication  of  libel  by,  avoids  privilege,  152,  286. 

POST-MARK, 

as  evidence  of  place  of  publication,  559,  600. 

POST-MASTER, 

complaint  as  to,  218,  226. 

POX, 

charge  of  having,  64 

(694) 


GENERAL   INDEX.  623 

(The  paging  refers  to  the  [*]  pages.) 

PRACTICE  IN  CIVIL  CASES,  513—588. 

considerations  before  writ,  513. 

parties,  515. 

letter  before  action,  517. 

notice  of  action,  518. 

jurisdiction,  518. 

choice  of  Court,  519. 

Statute  of  I. imitations,  520,  540. 

former  proceedings,  521. 

joinder  of  causes  of  action,  523. 

endorsement  of  writ,  523. 

mailers  to  be  considered  by  the  defendant,  524. 

remitting|the  action  to  County  Court,  526. 

subsequent  proceedings  in  County  Court,  584. 

pleadings  (see  Pleadings),  5.8—544,  615—689. 

i  n  t  "r rogatories ,  545 — 553 . 

discovery  of  documents,  553. 

advice  on  evidence,  555. 

change  of  venue,  557. 

trial  and  evidence,  557 — 578. 

compromise,  578. 
[*781]  costs,  579. 

proceedings  after  judgment,  580. 

new  trial,  581 . 

County  Court  proceedings,  584. 

other  inferior  Courts,  588. 

PRACTICE   IN   CRIMINAL    PROCEEDINGS  BY  WAY   OF  INDICT- 
MENT, 589—610. 

proceedings  before  magistrates,  589. 

indictment,  593. 

pleading  to  the  indictment,  596. 

certiorari,  597. 

evidence  for  the  prosecution,  599. 

evidence  for  the  defence,  601. 

summing-up  and  verdict,  604. 

proceedings  after  verdict,  605. 

sentence,  607. 

costs,  609. 
PRACTICE  IN  PROCEEDINGS  BY  WAY  OF  CRIMINAL  INFORMA- 
TION, 6' 0—614. 

motion  for  the  order  nisi,  610. 

argument,  612. 

compromise,  613. 

trial  and  costs,  613. 

PRAISE, 

ironical,  may  be  a  libel,  6,  21,  116. 

PRAYER-BOOK, 

words  in  derogation  of,  465. 

PRECEDENTS 

of  pleadings  in  actions  for  libel  and  slander, 
statements  of  claims,  618 — 633. 
defences,  6,  3—659. 
interrogatories,  &c,  659 — 661. 

in  actions  of  slander  of  title,  662 — 669. 
in  County  Court,  670—673. 
of  criminal  pleadings, 

informations,  673 — 678. 
indictments,  678—687. 

(695: 


624  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

PREFATORY  AVERMENTS, 

as  to  traverse  and  denial  of,  535. 

evidence  as  to,  558,  568,  001. 

not  necessary  to  support  innuendo,  100,  118,  530. 

PRESS. 

liberty  of,  defined,  10. 
history  of  growth  of,  10 — 13. 
abuse  of  liberty  of,  10. 
censorship  of,  11,  12. 

PREVIOUS  ACTIONS,  295,  300,  521,  540,  653. 

[*782]  PREVIOUS  PUBLICATIONS 

of  same  libel  by  others,  no  defence,  157,  313,  315,  420,  576. 

no  evidence  of  its  truth,  174,  577. 

how  far  mitigation  of  damages,  313,  327. 
by  the  defendant,  277,  310. 

PREVIOUS  REPORTS  OR  RUMOURS,  102-166,  312,  577. 
if  bund  fide  repeated  to  person  calumniated,  107,  235. 

PRIEST, 

words  spoken  by,  242. 

of,  26,  128. 

PRINCIPAL 

and  agent,  409 — 415- 

liable  for  words  spoken  by  his  authority,  411. 

criminal  liability  of,  413,  433. 

defence  under  Lord  Campbell's  Act,  4'.4,  415,  433. 

ratification,  412. 

not  liable  for  malice  of  agent,  311. 

PRINTER, 

liability  of,  157,  412,  413,  432. 

must  print  his  name  and  address  on  every  publication,  12,  714. 

must  preserve  name  of  his  employer,  12,  517. 

must  make  a  return  under  the  Newspaper  Libel  and  Resist  ration  Act, 

1881.   .388,  560. 
cannot  recover  wages  for  printing  libellous  matter,  7. 
publication  to,  152,  153,  559. 

PRINTING, 

libels  by,  6,  157—159. 

prima  facie  evidence  of  publishing,  157,  550. 
a  libel  without  publication,  152,  153,  559. 
libellous  matter,  cost  of,  cannot  be  recovered,  7. 

PRISONER 

may  be  fined  for  contempt  of  court.  494. 
must  be  present  on  motion  for  new  trial,  607. 

"PRIVATE  AND  CONFIDENTIAL," 

marking  communication,  effect  of,  211. 

PRIVATE  CIRCULATION, 

book  printed  for,  criticism  of,  49. 

PRIVATE  INTERESTS, 

statements  in  defence  of,  privileged,  229. 

PRIVATE  LETTERS, 

publication  of,  restrained,  347,  348. 

(0«G) 


GENERAL    INDEX.  G25 

[The  pajjiDg  refers  to  the  [*]  pages.) 

PRIVATE  LIFE 

of  candidate,  when  open  to  discussion,  43,  233.  • 

PRIVILEGED  OCCASIONS,  33,  181—268. 

defence  that  words  were  spoken  on  a  privileged  occasion,  181,  643 — 65l- 
the  judge  to  deeide  whether  occasion  is  privileged  or  not,  183,  216,  57^- 
presumption  of  privilege  rebutted  by  evidence  of  malice,  263,  273,  277. 
[*783]  Occasions  absolutely  Privileged,  184—196. 
(i)  Parliamentary  proceedings,  185. 
(ii)  Judicial  proceedings,  187. 

words  spoken  by  a  judge,  187. 
words  spoken  by  counsel,  189. 
words  spoken  by  witness,  190,  644. 
words  in  affidavits,  &c,  191. 
(iii)  Naval  and  military  affairs,  194,  644. 
Qualified  Privilege,  197—268,  644. 
cases  of  qualified  privilege  classified,  197. 

I.  Where  circumstances   cast   upon   the  dependant  the  duty 
OP  making  a  communication. 

(A)  Communications  made  in  pursuit  of  a  Duty  owed  to  Society,  201. 
duty  may  be  moral  or  social,  199. 

(i)  Characters  of  servants,  201,  645. 

(ii)  Other  confidential  communications  of  a  private  nature  : 

(a)  Answers  to  confidential  inqui  ies,  204,  644,  645. 

(b)  Confidential    communications  not   in  answer  to  a  previous 

inquiry,  208. 

(c)  Communications  made  in  discharge  of  a  duty  arising  from 

a  confidential  relationship,  210. 
{d)  Information  volunteered  when  there  is  no  confidential  re- 
lationship existing,  213,  645. 
difficulty  of  the  question,  214. 
judge  r.  jury,  216. 
(iii)  Information  as  to  crime  or  misconduct  of  others,  221. 
charges  against  public  officials,  225. 
person  applied  to  must  have  some  jurisdiction,  227. 

(B)  Communications  made  in  Self-defence. 

(iv)  Statements  necessary  to  protect   defendant's   private   interests, 
229. 

(v)  Statements  provoked  by  a  previous  attack  by   plaintiff  on  de- 
fendant, 232,  647. 
statements  invited  by  the  plaintiff,  168,  234. 

II.  Where  the  defendant  and  the  person  to  whom  the  com- 
munication IS  MADE  HAVE  A  COMMON  INTEREST  IN  THE  SUBJECT 
MATTER  OF  THE   COMMUNICATION,  238. 

where  a  large  body  of  persons  are  interested,  243. 
if  strangers  present,  the  privilege  will  be  lost,  245. 

III.  Privileged  Reports,  248. 

(i)  Reports  of  Judicial  Proceedings,  248. 
matters  coram  nonjudic,,  249. 
reports  not  privileged,  253. 
reports  must  be  accurate,  255. 
reporting  part  only  of  a  trial,  258. 
no  comments  should  be  interpolated,  259. 
an  accurate  report  may  still  be  malicious,  261. 
(ii)  Reports  of  Parliamentary  Proceedings,  264. 
40  LIB.  k  slan.  (697) 


J-2V>  GENERAL,    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

PRIVILEGED  OCCASIONS—  Continued. 
(iii)  other  Reports,  266. 

public  meetings,  265,  377—383. 
in  criminal  eases,  436. 

[*784]  PRIVILEGE  OF  WITNESSES, 
as  to  self-criminating  evidence,  (544. 
as  to  production  of  state  papers,  563. 

PRIVY  COUNCIL, 

complaint  addressed  to,  privileged,  227. 

PRIVY  COUNCILLOR, 

words  concerning,  126. 

PROCEEDINGS, 

former,  295,  306,  521,  540,  653. 
after  judgment,  580. 
in  the  County  Court,  584. 
before  magistrates,  589. 
after  verdict,  605. 

report  of,  matter  of  public  interest,  44 — 46. 
privileged,  248—263. 

PROCTOR, 

words  concerning  a,  28,  173. 

PROFANE  LIBELS,  440—470,  688—704. 

PROFESSION, 

words  injuring  the  plaintiff  in  the  way  of  his,  19,  25—29,  65 — 83.  623 — 
628. 

PROFITS, 

loss  of,  is  special  damage,  298,  303,  307. 

PROMISE, 

to  indemnify  against  consequences  of  publishing  libel,  8. 
to  abstain  from  publishing  libel.  8. 

PROOF, 

of  plaintiff's  special  character,  558. 
of  publication,  559. 
of  the  libel,  562. 

of  the  speaking  of  the  slander,  564. 
that  the  words  refer  to  the  plaintiff,  567. 

that  the  words  were  spoken  of  the    plaintiff  in  the  way  of  his  office,  pro- 
fession, or  trade,  568. 

PROPRIETOR 

of  newspaper  liable  for  all  libels  contained  therein,  5,  159,  413. 
civilly,  5,  6,  29,  158,  265—268,  412—415,  635. 
criminally,  412,  414,  415,  432. 
register  of,  12,  13,  388—393. 
"representative,"  387. 

PROSECUTIONS,  DIRECTOR  OF  PUBLIC, 
fiat  of,  9,  383,  384,  589. 

not  necessary  for  criminal  information,  384,  589. 

PROSPECTIVE  DAMAGES,  295. 

PROSTITUTE, 

charge  of  being,  not  actionable,  if  spoken,  85,  86. 
charge  of  having  under  protection,  libelous,  22. 

(698) 


GENERAL    INDEX.  627 

(The  paging  refers  to  ihe  [*]  pages.) 

[*785]  PROSTITUTION, 

words  imputing,  to  a  single  woman,  86 — 89,  333. 
to  a  schoolmistress,  85. 
to  the  shopwoman  of  a  trader,  85. 
to  a  married  woman,  86 — 89,  336. 

PROVOCATION 

by  libel  to  a  breach  of  the  peace,  3,  423. 

by  plaintiff's  conduct,  232,  318,  428. 

by  previous  libels,  when  evidence  in  mitigation,  318. 

PUBLIC  ATTENTION, 

persons  inviting,  may  be  criticized,  50 — 52. 

PUBLIC  BENEFIT, 

when  a  defence  in  criminal  proceedings,  437 — 439,  684,  718. 

PUBLIC  INTEREST,  MATTERS  OF, 

may  be  freely  commented  on,  32 — 52. 
what  are,  40 — 52. 

is  a  question  for  the  judge,  42. 
affairs  of  State,  42—44. 
Government  patronage,  43. 
debates  and  proceedings  in  Parliament,  42,  43. 
petitions  to  Parliament,  43. 
books  and  other  literary  publications,  48,  49. 
paintings  and  works  of  art,  48,  49. 
architecture,  48,  49. 

advertisements,  playcards,  circulars,  50 — 52. 
the  performances  at  places  of  public  entertainment,  49,  50. 
the  conduct  of  persons  attending  a  public  political  meeting,  52. 
management  of  public  institutions,  46,  47. 
parochial  charity,  47. 
ecclesiastical  affairs,  47,  48. 

the  public  conduct  of  public  men,  32,  36,  38,  39,  42. 
persons  inviting  public  attention,  50 — 52. 
newspaper  controversies,  50—52. 

PRECEDENT  OF  PLEAS  BONA  FIDE  COMMENT  ON,  635,  636. 

PUBLIC  MEETINGS, 

reports  of  proceedings  at,  how  far  privileged,  266—268,  377—383,  652. 
comments  on  conduct  of  persons  attending,  permitting,  52. 
what  are,  379. 

PUBLIC  MEN, 

who  are,  40,  41. 

their  public  conduct  may  be  freely  discussed,  35,  36,  40 — 44. 

imputation  of  corrupt  motives  to,  36 — 40,  42—44. 

PUBLIC  OFFICER, 

information  given  to,  privileged,  221 — 225. 
charges  against,  privileged,  225 — 229. 

PUBLIC  PERFORMANCES  AND  ENTERTAINMENTS 

may  be  the  subject  of  fair  criticism,  49,  50.        * 

[*786]  PUBLIC  POLICY, 

ground  for  refusing  to  produce  a  document,  563. 

PUBLIC    PROSECUTOR, 

fiat  of,  when  requisite,  9,  383,  384,  589. 

PUBLICAN, 

defamation  of,  30,  81,  101. 

(699) 


(J28  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

PUBLICATION,  151—169,  432—436. 
definition  of,  151. 

must  be  to  a  third  person,  151,  153. 

plaintiff  must  prove  a  publication  by  the  defendant  in  fact,  154. 
publication  per  ctiium,  156,  433,  602. 
publication  in  a  newspaper,  158,  26  >. 
to  printer,  152,  153. 

all  concerned  in,  are  liable,   157,  158,  432. 

excessive  or  repealed,  will  aggravate  damages,  159, 161,  230,  243,  286,  309. 
in  criminal  cases,  432 — 436,  602. 
denial  of,  637. 

unconscious,  160,  433,  602,  638,  639. 
repetition  of  a  slander,  16.',  166. 
naming  your  authority  no  defence,  163. 
sometimes  a  duty  to  repeat,  167. 
by  sale  in  a  shop,  160,  161. 
by  letter,  telegram,  or  postcard,  152,  286. 
by  placard,  155,  564. 

by  copying  from  another  newspaper,  160,  313,  314. 
by  mistake,  6,  1 55,  574: 

premature,  by  newspaper,  in  anticipation  of  official  report,  268. 
by  contrivance  of  plaintiff  himself,  168,  234. 
may  be  restrained  by  injunction,  when,  340 — 364,  627. 
proof  of,  559,  600. 
proof  of,  where  libel  is  lost,  563. 
in  a   particular  county,  600. 

PUBLISHER, 

who  is  liable  as,  125—166,  432. 

PUFFING 

own  goods,  no  libel,  31,  147,  150. 

PUNISHMENT 

at  common  law,  422,  425. 

under  Lord  Campbell's  Act,  426. 

by  requiring  sureties  for  good  behaviour,  425. 

for  a  blasphemous  libel,  440. 

for  an  obscene  libel,  471. 

for  a  seditious  libel,  479. 

for  contempt  of  court,  492,  494,  499—502,  506,  508. 

pillory,  440,  479. 

what  may  be  shown  in  mitigation  of,  608. 

[*787]  "QUACK,"  27,  77. 

QUALIFIED  PRIVILEGE,  197—268. 

cases  of  qualified  privilege  classified,  197. 

I.  Where  circumstances  cast  upon  the  Defendant  the  duty  of 
making  a  Communication. 

(A.)  Communication*,  made  in  pursuance  of  a  Duty  owed  to  Society ,  201 . 
(i.)  Characters  of  servants,  201. 

(ii.)  Other  confidential  communications  of  a  private  nature,  204. 
,        (a)  answers  to  confidential  inquiries,  204. 

(6)  confidential  communications  not  in  answer  to  a  pre- 
vious inquiry,  208. 

(c)  communications  made  in  discharge  of  a  duty  ari  ing 

from  a  confidential    relationship  existing  between 
the  parties,  210. 

(d)  information  volunteered  when   there  is  no  confiden- 

tial relationship  existing  between  the  parties,  213. 

(700) 


GENERAL    INDEX.  629 


(The  paging  refers  to  the  [*]  pages.) 


QUALIFIED  PRIVILEGE—  Contin  ued. 

(iii.)  Information  as  to  crime  or  misconduct  of  others,  221. 
charges  against  public  officials,  225. 
complaint  must  be  addressed  to  person  having  jurisdic- 
tion, 227. 
(B.)  Communication  made  in  Self-Defence,  229. 

(iv.)  Statements  necessary  to  protect  defendant's  private  interests, 

229. 
(v.)  Statements  provoked  by  a  previous  attack  by  plaintiff  on  de- 
fendant, 232. 
statements  invited  by  the  plaintiff,  234. 

II.  Where  the  Defendant  and  tiie  Person  to  whom  the  Commu- 

nication  IS  MADE,  HAVE  A  COMMON    INTEREST    IN  THE   SUBJECT- 
MATTER  OP  THE   COMMUNICATION,  238. 

where  a  large  body  of  persons  are  interested,  243. 
if  strangers  present,  the  privilege  will  be  lost,  245. 

III.  Privileged  Reports,  248 — 268. 

QUARTER  SESSIONS, 

power  to  punish  for  contempts,  504 — 511. 

jurisdiction  to  try  indictments  for  libel,  426,  471,  473,  593. 

is  an  inferior  court,  511. 

QUESTION, 

libel  may  be  insinuated  in  a,  126. 
and  answer,  libel  by,  127,  529. 

QUI  FACIT  PER  AL1UM  FAC1T  PER  SE,  156. 

R. 
RABBITS, 

charge  of  destroying,  24,  115. 

RAILWAY  COMPANY, 

placarding  conviction  for  infringement  of  bye-laws,  174." 
may  sue  and  be  sued  for  libel,  415 — 417. 
charge  of  breaking  bye-law  of,  56. 

"RASCAL,"  62. 

[*788]  RATEPAYERS 

have  a  common  interest,  238. 
statements  by,  at  parish  meeting,  241. 

RATIFICATION,  412. 

RE-ASSERTION  OF  SLANDER 
in  reply  to  inquirer,  234 — 238. 

"REBEL,  "  121. 

REBUS 

may  be  a  libel,  6. 

REBUTTING  JUSTIFICATION,  570. 

RECEIVERS 

appointed  by  the  court,  407. 

RECEIVING  STOLEN  GOODS, 
charge  of,  actionable,  55,  60. 
what  a  sufficient  charge  of,  62,  123. 

(701) 


630  GENEBAL    INDEX. 

(The  paging  refer*  to  the  [*]  pa^eH.I 

RECOGNISANCES,  426,  508,  592. 

RECORD, 

courts  of,  492—508.. 
courts  not  of,  508—511. 

REDRESS, 

bond  fide  claim  for,  privileged,  225—229. 

REGISTER 

of  newspaper  proprietors    12,  18,  387 — 393,  727. 

of  "representative  proprietors,"  387,  72?. 

none,  of  newspaper  belonging  to  a  company,  393,  728. 

to  be  evidence,  391,  728. 

REGISTRATION  AGENT, 

words  concerning,  6G. 

RELATIONSHIP, 

confidential,  what  is,  210. 

privilege  arising  from,  210 — 213. 

RELEASE 

must  be  specially  pleaded,  540. 

RELIGION, 

publications  against,  440 — 470. 

blasphemy,  440,  450. 

heresy,  447,  450. 

ecclesiastical  courts,  jurisdiction  of,  447 — 450. 

statutory  provisions,  464 — 467. 

RELIGIOUS  INTOLERANCE, 

charge  of,  libellous,  21. 

RELIGIOUS  SECTS  AND  SOCIETIES, 

libels  upon,  424,  429. 

expulsion  from,  61,  87,  88,  300,  336. 

members  have  a  common  interest,  243. 

[*789]  REMEDIES  FOR  LIBEL, 

civil  and  criminal,  8—10,  423,  437. 

REMITTING  ACTION 

to  the  County  Court,  372,  526,  585. 

REMOTENESS  OF  DAMAGES,  325. 

damages  must  be  direct  result  of  defendant's  own  words,  330. 

damage  must  have  accrued  to  Hie  plaintiff,  335. 

damage  resulting  to  the  husband  of  the  female  plaintiff,  326. 

damage  caused  by  the  act  of  a  third  party,  328. 

not  essential  that  such  third  person  should  believe  the  charge,  329. 

originator  of  a  slander  not  liable  for  damage  caused  by  its  repetition,  331. 

exceptions  to  this  rule,  332. 

REPETITION 

of  slander  heard  from  another,  162—169,  313—315,  330—334. 

by  wife  to  husband,  153,  329,  334. 
naming  informant  now  no  avail,  163,  166. 

formerly  a  defence,  163.. 
bond  fide  repetition  to  person  calumniated,  167,  235. 
libellous  articles  reproduced  from  other  newspapers,  160,  3x4,  603. 
of  libel,  may  be  evidence  of  malice,  276,    277. 
especially  if  exaggerated,  284. 
(702) 


GENERAL    INDEX.  631 

(The  paging  refers  to  the  [*]  pages.) 

REPLICATION 

in  criminal  cases,  51>7,  675,  686. 

REPLY 

as  to  pleading,  543. 

of  pardon  to  a  plea  charging  felony,  59,  545. 
to  plea  under  Lord  Campbell's  Act,  322,  544. 
precedents  of,  637,  638. 

REPORTER, 

duty  of,  44,  248,  259. 

REPORTS 

dill'er  from  comments,  35,  259. 

of  imaginary  facts,  37. 

(i)  Reports  of  judicial  proceedings,  248,  650,  651. 

of  ex  parte  proceedings,  248. 

of  a  part  of  the  proceedings,  258. 

of  matters  coram  notijudice,  249. 

must  be  accurate,  255. 

in  newspapers,  not  specially  privileged,  256. 

no  comments  should  be  interpolated,  259. 

when  not  privileged,  253. 

an  accurate  report  may  still  be  malicious,  261. 

whole  should  be  considered,  25,  263. 
(ii)  Reports  of  Parliamentary  proceedings,  264. 
(iii)  Other  reports,  266. 

public  meetings,  266,  377—383,  652. 

"  REPRESENTATIVE  PROPRIETORS," 

register  of,  387. 

[*790]    REPUTATION 
defined,  151. 
is  property,  17. 

injury  to,  gist  of  action,  18,  19. 
of  plaintiff  in  aggravation  of  damages,  310. 
in  mitigation  of  damages,  320. 
of  other  person  than  plaintiff,  impugning,  15,  335. 

RETORTS, 

how  far  privileged,  232,  318. 

RETRIBUTORY  DAMAGES,  295. 

RETURN 

under  Newspaper  Libel  and  Registration  Act,  1881 ,  388 — 391 
penalty  for  omission  to  make  annual,  389. 
penalty  for  false,  390. 
any  party  may  make,  389. 
registrar  to  enter,  391. 

"  RETURNED  CONVICT,"  59. 

REVIEWS  OF  BOOKS,  PICTURES,  &c, 

how  far  permitted,  33—38,  48,  49. 

REVISING  BARRISTER, 
slander  of,  66. 
power  of,  to  remove  disorderly  person,  510. 

REWARD 

offered  for  detection  of  crime,  232,  289,  646. 

(703 1 


632  GENERAL    INDEX. 

(The  paging  refers  to  the  [*J  pages.) 

RIDICULE, 

words  which  expose  a  person  to,  libellous,  19,  20. 
as  a  weapon  of  criticism,  34,  49. 

"  RIDING  SKIMMINGTON,"  13. 

RIGHT  OF  ACTION 

not  assignable  on  bankruptcy,  407. 

ROBBERY, 

charge  of,  actionable,  55. 

"ROGUE,"  3,  20,  84,  305. 

ROMAN  CATHOLICS, 

penal  statutes  against,  59. 

libel  on  monks  and  uuns,  126,  424. 

attacks  upon,  4,  43,  254,  26  T. 

ROMAN  LAAV 

as  to  acts  injurious  to  reputation  of  others,  14. 
as  to  justification,  180. 
as  to  malice,  182. 

"ROUGH  MUSIC,"  13. 

ROYAL  COMMISSIONER, 

charge  of  corruption  against,  72. 

[*791]  RUMOUR, 

existence  of,  no  justification  for  a  repetition  of,  166,  235,  237,  313,  577. 
except  bond  fide  repetition  to  person  calumniated,  167,  235. 
when  evidence  in  mitigation,  313,  577. 
false  rumours,  wilfully  circulated,  425. 
exaggerated  version  of,  284. 

"  RUNAGATE,"  62. 


SACRAMENT, 

words  despising  or  contemning,  464, 465. 

SALFORD  HUNDRED  COURT, 

jurisdiction  of,  in  slander  and  libel,  588. 
costs  in,  368,  588. 

SATISFACTION,  ACCORD  AND,  540,  654. 

SCANDALOUS  MATTER 

in  pleadings,  affidavits,  &c,  maybe  expunged,  192,  549. 
meaning  of  term,  549. 

SCANDAL  UM  MA  ON  A  TUM. 
statutes  of.  134—136. 
who  may  bring  action  of,  136. 
the  nature  of  the  words  to  support  the  action,  136. 
venue  in  actions  for,  136. 

SCHOOLMASTER, 

words  concerning,  68,  228. 

SCHOOLMISTRESS,  21,  61. 

imputing  prostitution  to,  85. 

(704) 


GENERAL    INDEX.  633 

(The  paging  refers  to  the  [*]  pages.) 

"SCOUNDREL,"  21,  61. 

SECONDARY  EVIDENCE, 

when  libel  lost  or  destroyed,  563. 

SECRETARY  OF  STATE, 

letters  to,  privileged,  196,  212,  226,  563. 
orders  issued  by,  absolutely  privileged,  196. 

SECT. 

libels  on,  423,  424,  429. 

expulsion  from,  not  special  famige,  87. 

SECURITY  FOR  COSTS, 

required  from  alien,  408.  525. 

from  bankrupt  plaintiff,  407. 
not  required  from  married  woman,  396. 

or  infant,  405. 
on  removal  of  indictment  by  certiorari,  609. 

SEDITION, 

charge  of,  actionable,  121. 

[*792]  SEDITIOUS  WORDS,  476—512. 
defined,  476. 

I.  Treasonable  Words,  477. 

i.   Words  merely  spoken,  477. 

ii.  Words  written  or  printed  but  not  published,  477. 
iii.   Words  written  or  printed  and  published,  478 
compassing  the  king's  death,  478. 

II.  Sedition,  479. 

i.  Words  defamatory  of  the  sovereign  himself,  479 — 481 . 

truth  no  defence,  481. 
ii.  Words  defamatory  of  the  king's  ministers  and    government,  481 
—485 
latitude  allowed  to  political  writers,  484,  487. 
iii.  Words  defamatory  of  the  constitution,  485—488. 
iv.  Words  defamatory  of  either  House  of  Parliament  or  of  the  mem- 
bers thereof,  488-491. 
power  of  House  to  punish  for  contempt,  488 — 490. 
powers  of  subordinate  legislative  bodies,  490,  491. 
v.  Words  defamatory  of  Courts  of  Justice  and  of  individual  iuderes, 
492-512. 

(a)  Superior  Courts,  492—504. 
words  defamatory  of,  492. 
fair  criticism  of,  492. 
contempts  of,  what  are,  493—502. 
committal  and  attachment  by,  499. 
what  are,  502—504. 

(b)  Inferior  Courts,  504—512. 
words  defamatory  of,  504 — 505. 

power  of,  to  commit  for  contempt,  506,  507. 

to  require  sureties  for  good  behaviour,  508. 
statutory  provisions,  509,  510. 
what  are,  511. 

SELF-DEFENCE, 

language  published  in,  is  privileged,  229 — 232,  647. 

SENS  US  VERB  DRUM  EX  CAUSA   DICENDI  ACCIPIENDUS  EST, 
107. 

SENTENCE,  607. 

i 705  i 


63  I  GENERAL    INDEX. 

(The  paging  refers  to  the  [*]  pages  ) 

SEPARATE  ISSUES, 
costs  of,  5569. 

SERMON, 

not  privileged,  5,  242. 
delivery  of,  restrained,  338. 
unpublished  criticisms  on,  48. 
seditious,  charge  of  preaching,  121. 

SERVANT, 

words  concerning,  79. 

when  liable  as  publisher,  161,  410. 

employer,  when  liable  for  acts  of,  411 — 415,  433,  602. 

charge  against,  when  privileged,  203,  204,  209,  274. 

communication  to  employer  concerning,  when  privileged,  217. 

giving  character  to,  201—204,  645. 

delivery  of  libel  by,  not  knowing  contents,  161,  411,  602. 

[*793]  SERVICE  OF  THE  WRIT 

out  of  the  jurisdiction,  518,  519. 

SETTING  ASIDE  INTERROGATORIES,  549. 

"SHAMEFUL  CONDUCT," 
charge  of,  28,  98. 

SHAREHOLDERS, 

proceedings  at  meeting  of,  privileged,  240,  244. 
reports  to,  privileged,  240,  244,  246. 
circulars  to,  privileged,  345. 

SHIP, 

libel  on,  15,  32,  133,  150,  308. 
slander  of,  409. 

SHIPOWNER, 

words  concerning,  82,  133. 

SHOPKEEPER, 

words  concerning,  80,  81,  82,  230,  231. 

SHOPMAN, 

imputing  scarlet-fever  to,  15,  92,  410. 

SHOPWOMAN, 

words  imputing  prostitution  to,  80. 

SICKNESS, 

is  not  special  damage,  298,  300,  302,  307. 

SIGN, 

libel  by,  6,  20. 

SISTER. 

brother  cannot  sue  for  slander  of,  15,  335. 

SLANDER, 

defined,  1,  6,  53. 

distinguished  from  libel,  3,  17 — 19. 

when  not  actionable  without  proof, of  special  damage,  297,  298. 

I.  Words  imputing  an  indictable  offence,  53,  618,  620. 
early  eases  on  this  subject,  54. 

the  charge  must  be  specific  and  precise,  61,  120 — 127. 
the  crime  imputed  must  be  possible,  63. 

(706) 


GENERAL    INDEX.  635 

[The  paging  refers  to  the  [*]  pages.) 

SLANDER—  Continued. 

II.   Words  imputing  a  contagious  disease,  53,  64,  65,  625. 

III.  Words  spoken  of  the  plaintiff  in  the  way  of  his  office,   profes- 

sion, or  trade,  65—83,  625—629. 
such  words  must  atlect  him  in  such  office,   profession,  or 

trade,  67. 
imputation  of  professional  ignorance  or  unskilfulness,  70, 

626. 
plaintiff  must  be  carrying  on  such  trade,  &c,  at  the  time  he 

is  defamed,  71. 
words  imputing  want  of  integrity  to  any  one   holding  an 

office  of  trust,  71. 
words  concerning  clergymen,  73 — 75,  625. 
words  concerning  barristers,  solicitors,  &c,  75,  76,  627. 
words  concerning  physicians  and  surgeons,  77.  626. 
words  affecting  traders  in  the  way  of  their  trade,  79,  628. 
imputations  of  insolvency,  67,  80,  629. 
imputations  of  dishonesty  and  fraud  in  the  conduct  of  their 

trade,  81,  628. 

IV.  Words  actionable  only  by  reason  of  special  damage,  83 — 92. 

words  imputing  immorality,  85. 

words  imputing  unchastity,  86. 

unsatisfactory  state  of  the  law  on  this  point,  87 — 89. 

all  words  causing  special  damage  are  actionable,  89,  150. 
repetition  of,  162—169,  330—334. 
naming  informant,  163. 

re-assertion  in  answer  to  plaintiff's  inquiry,  167,  234 — 238. 
of  sister,  brother  cannot  sue  for,  15,  335. 
of  deceased  father,  son  cannot  sue  for,  335. 
injunction  to  restrain,  363,  627. 
proof  of  the  speaking  of  the,  564. 
precedents  of  pleadings,  &c,  in  actions  of,  618 — 661. 

SLANDER  OF  TITLE,  OR  WORDS  CONCERNING  THINGS,  138—150. 

definition,  138. 

plaintiff  must  prove  the  words  false,  172. 

special  damage  must  be  proved,  139. 

malice  must  be  proved,  142. 

slander  of  goods  manufactured  or  sold  by  another,  147. 

other  words  producing  special  damage,  15,  150. 

action  survives  to  executor,  408. 

precedents  op  pleadings  in  actions  of,  662 — 669. 

SLANG  TERMS, 

question  for  jury  as  to  meaning  of,  109,  110. 
evidence  for  jury  as  to,  566. 

SMALL-POX. 

charge  of  having,  not  actionable,  64,  65. 

"  SMASHER,"  624,  640. 

SOCIETY, 

loss  of,  words  tending  to  cause,  20. 

of  neighbours,  300,  305. 

of  husband,  300. 
duty  to,  communications  in  pursuance  of,  privileged,  201 — 229. 

SOLICITING  ANOTHER  TO  COMMIT  A  CRIME, 
charge  of,  actionable,  56. 

(707)' 


(536  GENERAL   INDEX. 

(The  paging  refers  to  the  [*]  pages.) 

SOLICITOR, 

words  concerning  70,  76,  77,  206,  622,  627,  637. 

libels  on,  28,  98,  105,  116,  228,  621,  619. 

acting  as  advocate,  privilege  of,  190. 

proof  of  qualification,  558. 

not  liable  for  asserting  his  client's  rights,  143,  230. 

may  give  information  unasked  to  client,  211. 

publication  of  libel  to,  208,  231. 

[*795]  SOMERSET  HOUSE, 

register  of  newspaper  proprietors  at,  12,  13,  391,  392,  560. 

SON, 

cannot  sue  for  slander  of  deceased  father,  335. 
may  take  criminal  proceedings,  422,  682. 
complaint  to  father  of  conduct  of  his,  212,  217. 

SORCERY, 

charge  of,  formerly  actionable,  60. 

SOVEREIGN, 

words  defamatory  of,  479. 
words  spoken  against,  477. 
compassing  death  of,  478. 

SPECIAL  CHARACTER, 

proof  of  plaintiff's,  558. 
mode  of  averring,  531. 

SPECIAL  DAMAGE, 

when  essential  to  action,  1,  17,  18. 

defined,  291. 

words  causing,  83 — 92,  147. 

essential  in  slander  of  title,  139, 

what  constitutes,  291,  297. 

must  be  specially  pleaded,  302. 

arising  after  action,  306. 

where  the  words  are  actionable  per  se,  306. 

where  the  words  are  not  actionable  per  se,  297. 

remoteness  of,  325 — 334. 

particulars  of,  629. 

SPECIAL  JURY, 
costs  of,  579. 

SPEECHES, 

in  Parliament,  reports  of,  35,  42,  185,  186,  264. 
of  counsel,  189. 

reports  of,  248—263. 

SPIRITUAL  COURT, 

jurisdiction  of,  in  cases  of  defamation,  17,  61,  88. 

in  cases  of  blasphemy  and  heresy,  447 — 450. 

STAR  CHAMBER, 

decrees  of,  regulating  press,  10,  11. 

STATE  PAPERS, 

privilege  as  to  production  of,  563. 

STATEMENT  OF  CLAIM,  528—532. 
joinder  of  causes  of  action,  523. 

the  words  must  be  set  out  verbatim  in,  100,  109,  528. 
averments,  what  necessary,  118—120,  531. 

(708) 


GENERAL    INDEX.  G37 

(The  paging  refers  to  the  [*]  pages.) 

STATEMENT   OF  CLAIM—  Continued. 

innuendo,  100—117.  530. 
words  in  a  foreign  language,  529. 
special  damage  must  be  specially  pleaded,  532. 
venue,  532. 

particulars  of,  533,  633. 
[*796]  precedents  of,  in  libel  and  slander,  618—633,  670—673. 
in  slander  of  title,  662—669. 

STATEMENT  OF  DEFENCE,  532—543,  633—659.     See  Defence. 

STATUE 

may  be  a  libel,  6. 

STATUTE  OF  LIMITATIONS, 
plea  of,  540,  653. 

STATUTES.     See  Appendix  of  Statutes,  D.  707—729. 
contents  of  sucb  Appendix,  707. 

See  also  Table  of  Statutes  cited. 

Table  of  Rules  and  Orders  cited. 

STAY  OF  EXECUTION,  580. 

STEALING, 

imports  a  felony,  122. 

what  amounts  to  charge  of,  61,  62,  63,  122. 

goods  of  married  woman,  63,  96. 

STOCK-JOBBER, 

words  concerning,  83. 

STOLEN  GOODS, 

charge  of  receiving,  55,  123. 

STORY  TOLD  BY  PLAINTIFF  AGAINST  HIMSELF,  5,  23. 

STRIKING  OUT 

causes  of  action  improperly  joined,  523. 
pleadings,  421,  544. 
interrogatories,  549,  550. 

STRUCK  OFF  THE  ROLLS, 

charge  that  an  attorney  was,  or  ought  to  be,  5,  28,  76,  173,  206,  257. 

"  STRUMPET,"  60,  86. 

SUBORNATION  OF  PERJURY, 
charge  of,  actionable,  56. 

SUBSCRIBER  TO  A  CHARITY, 

statement  by,  respecting  the  officers  of  charity,  244. 
to,  by  committee,  240. 

SUBSTANTIAL  DAMAGES,  294. 

SUITOR, 

communication  warning  lady  against,  219,  240,  274,  645. 

SUMMARY  JURISDICTION 

of  justices  to  require  sureties  for  good  behaviour,  508,  592. 

to  issue  warrant  to  apprehend  a  libeller,  589 

to  commit  for  trial,  590. 

to  take  bail,  590. 

public  benefit  or  truth  of  libel  may  be  inquired  into.  384,  385. 

in  cases  of  obscene  libels,  &c,  472 — 475. 

(70««) 


638  GENERAL    INDEX. 

(Tlie  pacing  refers  to  lUc  [*]  i)ages.) 

SUMMARY  JURISDICTION.— Continu  d. 

seizure  of  oilier  libellous  papers,  illegal,  593. 
over  trivial  libels  in  a.  newspaper,  386,  592. 

[*797]  SIMM AR V  PROCEEDINGS 

before  magistrates,  reports  of ,  248. 

SUMMING  UP 

in  a  civil  case,  578. 

in  a  criminal  case,  604. 

report  of,  may  be  published  separately,  258. 

SUMMONS 

for  particulars,  533,  544,  638. 

to  amend  a  pleading,  533,  544. 

for  leave  to  administer  interrogatories,  545. 

for  inspection  of  documents,  553. 

to  change  venue,  557. 

before  a  magistrate,  589. 

SUPERIOR  COURTS, 

words  concerning,  492. 
contempts  of,  504. 

SUPERIOR  OFFICER, 

reports  to,  privileged,  194 — 196. 

SURETIES 

for  good  behaviour,  508,  592. 

SURGEON, 

slander  of,  77,  78,  85,  305,  626. 

libels  on,  27. 

proof  of  qualification  of,  558,  559. 

SURPRISE 

as  ground  for  new  trial,  581,  584. 

SUSPICION, 

words  of  mere,  not  actionable,  57,  125. 

bona  fide,  communication  of,  204,  217,  221—229. 
"SWINDLER,"  21,  02. 

SYPHILIS, 

charge  of  having,  64,  65. 

T. 

TELEGRAM, 

publication  of  libel  by,  avoids  privilege,  152,  286. 
libellous,  liability  for  transmitting,  417. 

THEATRICAL  PERFORMANCES, 

criticism  on,  permitted,  49,  50. 

THIEF, 

imputations  of,  59,  61,  105,  122,  123. 

"THIEF,"  59,  61,  105,  122. 

THING, 

slander  of,  14,  138—150. 
libel  on,  30—32,  422. 

[*798]  THIRD  PARTY, 

liability  of  defendant  for  act  of,  328,  329. 

liability  of,  for  same  or  similar  libel,  no  defence,  157,  313,  420,  576. 
no  mitigation,  315.  577. 

(710) 


GENERAL    INDEX.  639 

(The  paging  refers  to  the  [*]  pages.) 

THREAT 

to  publish  a  libel  with  intent  to  extort  money,  &c,  426,  427. 
to  witness  or  suitor,  contempt,  of  court,  497. 

THREATENING  LETTERS, 
charge  of  having  sent,  105. 
sending,  to  extort  money,  426,  427. 

TITLE, 

slander  of,  14,  138—150.     See  Slander  op  Title. 
precedents  of  pleadings  in  actions  of,  662 — 669. 

TOWN  CLERK, 

words  concerning,  72,  279. 

may  obtain  a  criminal  information,  431. 

libel  on,  621. 

TOWN  CRIER, 

publication  of  libel  by,  287. 

TRADE, 

libel  of  persons  in  the  way  of,  19,  29—32,  65—83,  340—364. 
humility  of,  no  obstacle  to  right  of  action,  79. 
must  be  a  lawful  one,  83,  574. 

TRADE  PROTECTION  SOCIETY, 
circulars  of,  not  privileged,  213. 

TRADERS, 

libels  on,  29—32. 

slander  of,  79—83,  628. 

imputation  of  fraud  and  dishonesty  in  trade,  81,  82,  628. 

of  being  a  cheat  or  a  rogue,  81,  628. 

words  affecting  the  credit  and  solvency  of,  6,  29,  80,  81,  628. 

imputations  on  the  goods  or  commodities  of,  30 — 32,  81,  138,  147 — 150. 

caution  to,  not  to  trust  a  certain  customer,  214,  219. 

words  affecting  partners  in  trade,  30,  83,  398. 

married  women  traders,  30,  83. 

a  trading  company,  30,  415 — 417. 
that  the  goods  sold  by  A.  are  inferior  to  those  sold  by  B.,  31,  147—150. 
criticisms  on  advertisements  and  circulars  of,  32,  50,  51. 
evidence  of  loss  of  profits  and  of  business,  298,  307,  629. 

TRAVERSES,  535,  633,  634. 

TREASON,  477—479. 

charge  of,  actionable,  56. 

what  a  sufficient  charge  of,  121 . 

words  cannot  amount  to  overt  act  of,  477. 

treasonable  words,  477,  478. 

[*  799]  TRESPASS 

to  land  of  plaintiff,  84. 

to  building,  13. 

to  person,  14. 

imputation  of,  not  actionable,  56. 

TRIAL  IN  CIVIL  CASES,  557. 
notice  of,  557. 
with  a- jury,  557. 
change  of  venue,  557. 

libel  or  no  libel  is  a  question  for  the  jury,  25,  94,  98,  582. 
evidence  for  plaintiff,  558 — 570. 

(711) 


(540  GENERAL    INDEX. 

(The  paging  refers  10  the  [*]  pages.) 

TRIAL  IN  CIVIL  CASES—  Continued. 
nonsuit,  571. 

evidence  for  defendant,  572 — 577. 
compromise,  578. 
summing  up,  578. 

the  libel  itself  must  be  produced  at,  582. 
verdict,  579. 
reports  of,  248—263. 
comments  of,  44—46,  258,  495—498. 
time  of  giving  evidence  to  rebut  justification,  570. 
application  for  a  new,  580 — 584,  587. 
proceedings  after,  580. 
in  County  Court,  587. 

TRIAL  IN  CRIMINAL  CASES, 

pleading  for  the  indictment,  596. 

certiorari,  597 . 

evidence  for  the  prosecution,  599. 

evidence  for  the  defence,  601. 

summing-up  and  verdict,  604. 

proceedings  after  verdict,  665. 

sentence,  601. 

costs,  609. 

of  criminal  information,  613. 

"  TRUCKMASTER,"  22,  104. 

TRUSTEES, 

words  concerning,  26,  419. 
have  a  common  interest,  238. 
libel  on,  information  for,  424. 
may  all  join  in  one  action,  26,  419. 

TRUTH, 

as  a  justification  in  civil  proceedings,  170—180. 

why  a  defence,  i  79. 

as  a  justification  in  criminal  proceedings,  178,  437—439,  718. 

no  defence  unless  publication  was  for  public  benefit,  438,  602,  718. 

belief  in,  in  mitigation,  313,  612. 

U. 

UNCHASTITY, 

charge  of,  when  actionable,  19,  67,  74,  85—89,  399,  625. 
unsatisfactory  state  of  law  as  to,  86 — 89. 

[*  800]  UNCIVIL  WORDS, 
not  actionable,  lb. 

UNCONSCIOUS  PUBLICATION  OF  A  LIBEL,  155,  432—436,  638,  639,  655. 

UNDERGRADUATE, 

must  be  sued  in  University  Court,  520. 

UNDER-SHERIFF, 

on  writ  of  inquiry,  no  power  over  costs,  368,  526. 

UNDUE  INFLUENCE, 
charge  of,  130. 

UNFEELING  CONDUCT, 
charge  of,  libellous,  22. 

(712) 


GENERAL    INDEX. 
(The  paging  refers  to  the  [*]  pages .) 

UNITARIANISM, 

not  illegal,  460—462. 

legacies  and  trusts  in  favour  of,  enforced,  462. 

UNIVERSITY  COURT, 

resident  undergraduate  must  be  sued  in,  520. 

UNNATURAL  OFFENCES, 

charge  of,  actionable,  56,  124. 

UNSOUNDNESS  OF  MIND, 

charge  of,  21,  84,  210 

no  defence,  5,  269,  406,  639. 


VARIANCE 

between  words  laid  and  those  proved,  529,  530,  564,  565,  600. 

VENDOR  AND  PURCHASER, 

privilege  in  case  of,  649. 

VENEREAL  DISEASE, 

charge  of  having,  actionable,  64. 

VENIRE  DE NOVO,  607. 

VENUE, 

plaintiff  to  select,  532. 
application  to  change,  557. 
grounds  for  changing,  557. 
in  indictment,  600. 

VERDICT, 

in  civil  case,  579. 

against  weight  of  evidence,  581,  582. 

in  criminal  case,  604. 

proceedings  after,  in  a  civil  case,  580 — 584. 

in  a  criminal  case,  605. 
cures  certain  defects,  605. 

|*801]  VESTRY, 

proceedings  of,  may  be  criticised,  33. 

reports  of,  266.  379. 
meeting,  imputations  on  parish  officers  at,  234. 

VEXATIOUS  INDICTMENTS  ACT, 

all  libels  now  within,  387,  595.  726. 
binding  over  to  prosecute,  385,  592. 

VICE, 

words  imputing,  actionable  if  written,  19. 
not  if  spoken,  83 — 86. 

VICTUALLER, 

words  concerning,  30. 

"  VILLAIN,"  20,  62, 

VINDICATION  ,      _    nni       ' 

of  defendant's  character  from  attacks,  232—234,  647. 

VINDICTIVE  DAMAGES, 
when  allowed,  295. 
41    LIB.  &  SLAN.  (713) 


641 


642  GENEBAL    INDEX. 

(The  paging  refers  to  the  [*]  paKes.l 

VOCALISTS, 

libel  on,  32,  668. 

V0LEN11  NON  FIT  INJURIA,  168,  235. 

VOLUNTARY 

affidavit,  not  a  judicial  proceeding,  194. 

characters  of  servants  given  when  not  asked  for,  202,  203. 

VOLUNTEERING  COMMUNICATIONS 

in  discharge  of  duty,  213 — 221,  645. 

not  evidence  of  malice  where  duty  clear,  272,  287, 

caution  given  to  a  tradesman,  214. 

VULGAR  ABUSE, 

mere  words  of  not  actionable,  18,  108,  637. 

W. 

WALL, 

libel  by  writing  or  drawing  upon,  6,  564. 

WARRANT  OF  ARREST,  590. 

WATCHMAKER, 

words  defamatory  of,  67. 

WATER, 

charge  of  supplying  bad,  30. 

[*802]  "  WELCHER,"  62,  110. 

"  WHORE,"  60,  86. 

WIFE,  394—405. 

communication  to,  of  words  defamatory  of  husband,  153. 
charge  against,  communication  of  to  husband,  153. 
and  husband,  communications  between,  153. 
presence  of,  wdll  not  destroy  privilege,  247. 
words  defamatory  of,  claim  for,  631. 

WILL, 

charge  of  secreting,  formerly  not  actionable,  61. 

"  WITCH,"  60. 

WITHDRAWING  A  JUROR,  578. 

WITNESS, 

cannot  be  asked  how  he  understood  the  language  published,  110,  566. 

privilege  of,  190. 

defendant  as  a,  562. 

proof  of  previous  conviction  of,  573. 

threatening,  is  a  contempt,  493,  497. 

WOMEN, 

traders,  imputations  on,  30,  83,  398. 
verbal  imputations  on  chasity  of,  86 — 89. 

WORDS, 

action  on  the  case  for,  89 — 92. 
actionable  per  se,  18. 

imputing  crime,  must  be  precise,  120 — 127. 
meaning  of,  how  affected  by  circumstances,  98,  106 — 108. 
question  for  the  jury,  94,  98,  216,  263,  273. 
(714) 


GENERAL    INDEX.  643 

[The  paging  refers  to  the  [*]  pages.) 

WORDS—  Continued. 

general  terms  of  abuse,  not  actionable,  18,  61,  108. 

must  be  set  out  verbatim  in  the  statement  of  claim  or  indictment,  100,  528, 

•V.2!t,  593. 
obviously  defamatory,  104. 
primd  facie  defamatory,  106. 
adjective,  127. 
ambiguous,  106—116,  566. 
ironical,  li,  21,  116,  567. 
jesting,  5,  106,  108. 
neutral,  109. 

prima  facie  innocent,  112. 
clearly  innocent,  116 
not  in  their  nature  defamatory,  89 — 92. 
of  a  cant  or  slang  character,  109,  566. 
indirect  imputations,  125. 
of  suspicion,  57. 
interrogation,  127,  529. 
in  foreign  language,  109,  529,  565. 

application  of,  to  the  plaintiff  must  be  shown,  127 — 133,  567. 
must  be  taken  in  their  natural  sense,  97. 

[*803]  WORKMEN, 

action  for  threatening,  16,  410. 

WORKS  OF  ART, 

criticism  on,  48,  49. 

WRIT, 

considerations  before,  513. 

endorsement  on,  523. 

service  of,  is  privileged,  191,  518,  519. 

WRIT  OF  ERROR,  599,  606. 

WRIT  OF  INQUIRY,  526. 

under-sheriff  has  no  power  over  costs,  368,  526. 


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